We’re baaaaaack! Six months into our hiatus, we return just in time for your Thanksgiving dinner conversation! How about an update on the Trump administration, the GOP Congress and how overturning the norms of the judicial selection process is impacting everything.

Lower court nominees that are unqualified and appointed based on youth and ideology

Lena: First, a quick reminder of how we got here. Senate Majority not only held open and stole the Supreme Court seat that Chief Judge Merrick Garland (D.C. Cir.) was nominated for, but also more than 100 lower court vacancies. Indeed, 54 of President Obama’s nominations expired. Only a few were re-nominated by President Trump.

Right now, there are 155 current and known future vacancies (138 current, 17 future) and 63 judicial emergencies.

For a quick review/comparison of how the Trump Administration compares with this point in President Obama’s first year:

Stacking of Committee Hearings: on 11/29, it will be the fourth hearing over objections where two Circuit Court nominees (who are controversial) will sit on the same panel in the same hearing (read: minimal time for public questioning of nominees). In the entire Obama Administration, that happened only 3 times with consent of the Minority Party.

Given our new (and welcome) shift in attitude toward sexual harassment in the workplace, should Justice Thomas’ treatment of Anita Hill be revisited?

Lena: Yes. We should have all believed Anita Hill. The legal profession, like all professions, has some unique characteristics that entrench power dynamics in a way that often makes it incredibly difficult to speak out. Can look at this with nominations in that people worry that if someone becomes a judge, especially for life, that person will likely impact their profession and potential outcomes for clients. The incentive to be quiet is really strong, and to layer on top of that overarching disbelief can be crushing for women in the profession. We need more women, more people of color on the bench, so communities are represented but also so there can be better employment and mentorship opportunities especially for younger lawyers and students.

If Alabama decides to choose a Democrat for Senate over… other alternatives... do the Dems have a shot at the Senate in 18?

]]>Welcome to the Advice & Consent Podcast: news views and insight on the future of the supreme court. Shownotes and more are available at scotuscast.com. Email us at advice@scotuscast.com…. Check us out on Twitter and Facebook too. I’m Tim Mooney, joined by the ragtag gang of the usual suspects… Adam Shah and Lena Zwarensteyn!

We’re baaaaaack! Six months into our hiatus, we return just in time for your Thanksgiving dinner conversation! How about an update on the Trump administration, the GOP Congress and how overturning the norms of the judicial selection process is impacting everything.

Lower court nominees that are unqualified and appointed based on youth and ideology

Lena: First, a quick reminder of how we got here. Senate Majority not only held open and stole the Supreme Court seat that Chief Judge Merrick Garland (D.C. Cir.) was nominated for, but also more than 100 lower court vacancies. Indeed, 54 of President Obama’s nominations expired. Only a few were re-nominated by President Trump.

Right now, there are 155 current and known future vacancies (138 current, 17 future) and 63 judicial emergencies.

For a quick review/comparison of how the Trump Administration compares with this point in President Obama’s first year:

Stacking of Committee Hearings: on 11/29, it will be the fourth hearing over objections where two Circuit Court nominees (who are controversial) will sit on the same panel in the same hearing (read: minimal time for public questioning of nominees). In the entire Obama Administration, that happened only 3 times with consent of the Minority Party.

Given our new (and welcome) shift in attitude toward sexual harassment in the workplace, should Justice Thomas’ treatment of Anita Hill be revisited?

Lena: Yes. We should have all believed Anita Hill. The legal profession, like all professions, has some unique characteristics that entrench power dynamics in a way that often makes it incredibly difficult to speak out. Can look at this with nominations in that people worry that if someone becomes a judge, especially for life, that person will likely impact their profession and potential outcomes for clients. The incentive to be quiet is really strong, and to layer on top of that overarching disbelief can be crushing for women in the profession. We need more women, more people of color on the bench, so communities are represented but also so there can be better employment and mentorship opportunities especially for younger lawyers and students.

If Alabama decides to choose a Democrat for Senate over… other alternatives... do the Dems have a shot at the Senate in 18?

]]>01:22:29cleanWe’re back! Six months into our hiatus, we return just in time for your Thanksgiving dinner conversation! How about an update on the Trump administration, the GOP Congress and how overturning the norms of the judicial selection process is impacting everything.fullAdvice & ConsentAdvice & Consent 32: One Last Time (the season finale)Wed, 31 May 2017 23:22:28 +0000The ragtag gang of the usual suspects returns "one last time" (for this season anyway) to discuss the new Justice, the politics of the nomination process and more. For the first time all five member of the ragtag gang of the usual suspects alumni association are on the same pod... enjoy, and thank you for listening. We're like cicadas on this subject, so if there's a new SCOTUS nomination, go over to scotuscast.com and you may well find a new season of the pod...]]>The ragtag gang of the usual suspects returns "one last time" (for this season anyway) to discuss the new Justice, the politics of the nomination process and more. For the first time all five member of the ragtag gang of the usual suspects alumni association are on the same pod... enjoy, and thank you for listening. We're like cicadas on this subject, so if there's a new SCOTUS nomination, go over to scotuscast.com and you may well find a new season of the pod...]]>01:11:15yesAdvice & Consent 31: Justice Gorsuch*Sat, 08 Apr 2017 03:53:39 +0000Nuclear option and the asterisked Associate Justice

Yadda yadda yadda, he got confirmed. And the seat is stolen. And he always should be referred to as Justice Gorsuch*

*Seat stolen by GOP, 2016-2017.

Before reactions… a toast to Sen. Merkley for his voice filibuster this week. All night long, y’all.

Reaction to the filibuster, the nuclear explosion and Justice Asterisk?

Adam: I think filibusters are dumb. The Senate’s filibuster history is a total accident. The VP one day just up and ruled the previous question motion out of order because there was no reason to have a rule cutting off debate when there was such a tiny body. Then at some point, when the Senate got larger, people realized that unlimited debate could stop action on things they didn’t like. At one point, we did have people like Daniel Webster and Henry Clay in the Senate, but that isn’t the way it’s been for most of our history. It’s been more like people like Mitch McConnell and Ted Cruz, orators so grating, you have turn them off.

That said, what’s worse is changing norms and rules right and left to steal a seat and then fill that seat.

And what’s even worse is people who don’t understand the rules. Hey, Senate Dems, an appeal of the ruling of the chair is debatable and therefore filibusterable.

Lena: I love deliberative representative democracy. Legislation should take time because it should be done well. Nominations should be thoughtful, and that whole Article II Section 2 Advice and Consent piece seems to indicate is important.

I appreciate that this is all politics and results of elections. And I don’t think elections should be viewed as a winner takes all. I’m weary of the tyranny of the majority. And so, I appreciate tools available to the minority party so that they, too, can have a voice. What I feel about the filibuster is probably some idealized version that politicians would take to the floor and espouse their views. They could signal issues with a debate, and people, particularly other politicians would listen. The filibuster is therefore one of the tools I thought was important. However, the way that it has been used is not what what I believe it was intended to do. It’s become ineffective.

For what happened, I felt that this change shouldn’t be called nuclear because let’s not desensitize ourselves. It’s a change in rules. But I do think this move is horrible. This is what happened b/c this White House and Senate majority are in the winner-takes-all mode.

To get to this point, it’s been political and everyone is blaming the other party. And all under false equivalencies (as we’ve discussed previously) and a sense of inevitability (McConnell made this clear long ago).

In the Executive Business meeting on Monday and in most press statement, Rs have been lamenting “having to make this change” it didn’t seem like anyone could persuade McConnell. And maybe they didn’t want to. McConnell high 5ed Cornyn after the change and then McConnell all thumbs up.

Disappointed: Schumer et al should have used the 30 hours post cloture to debate this nomination. At a minimum, make speeches and use the tools and time.

Justice Asterisk? He’ll be forever known as the litmus tested justice. I hope that instills in him an even further appreciation for the need to be independent. To check himself as he hears cases and writes opinions. But I’m not hopeful based on his record. Sure, there will be times people will tell me “see, not so bad.” But I’m starting to believe Trump and people’s past record that got them to the point where folks say “you need this guy b/c he’ll overturn Roe and the NRA’s version of the Second Amendment”

[Tim: Rick Hasen Q to his Twitter followers: When will Justice Gorsuch* first rule in a way contrary to conservatives? My answer: Never.]

Tim: I’ve always felt ambivalent about the filibuster. I mentioned it on episode 018, aka the “let’s talk everyone off the ledge” episode of the pod. Also known as “Tim slaps an explicit tag on the pod.”

I understand why the Dems filibustered and I understand why the GOP went nuclear, even if I still bristle mightily at the larceny of the seat.

Other non-SCOTUS-focused media seemed surprised there was so little energy behind the two sides, even if there was high antipathy. I think the reason was very clear... by about 10pm ET on November 8th… before the final votes were cast, but right about when it was clear Trump was going to win… today’s outcome was preordained. The identity of Justice Asterisk was unknown, but the dance card was set. Perhaps that’s the saddest part of all of this… the Court may one day revert to being above politics, but I can’t forsee a day in my lifetime when it won’t be. Too many burned bridges.

I question what the new paradigm is… It may be seats on the Court are only filled when the same party holds the Senate and the White House. That means long-term vacancies during divided government. It means POTUS and Senate campaigns with SCOTUS shortlists. It seems to be the inevitable outcome here, but I hope I’m wrong.

Adam: Before I started working on judicial nominees, I had no idea the extent to which home-state senators were involved in judge-picking. When the president and both home-state senators are from the same party, the senators basically pick the trial court judges and sometimes the court of appeals judges. When at least one senator is from a different party, they basically have a veto on the court picks as long as either their party controls the Senate or they don’t abuse it.

There are not a large number of examples of Judiciary Committee chairmen holding hearings and votes without receiving blue slips from both Senate even though they have officially left themselves room to ignore the blue slips. Orrin Hatch did it for 4 nominees in 2004 under heavy pressure from the rest of his caucus, but he wasn’t happy about it. I get the sense that Grassley really doesn’t give a darn about the norms of the Senate (hi, ex-Sen. Norm Coleman) and McConnell certainly doesn’t. And Trump assuredly doesn’t. I think it’s over.

Tim: Bottom line: this is court packing, pure and simple. And court packing by eliminating a norm that assured moderation in states with split party representation. Norms aren’t laws and the GOP knows it can change these norms without getting nailed on it. They did it for Garland, and they’re doing it for lower court judges should this blue slip rumor be true.

The modern nomination process has produced a judiciary as political as the other branches

Agree or disagree?

Tim: The Court has been ideologically divided along different lines for a long time… back toMarburydays. But since the Bork nomination, the politics of nominations has politicized the judiciary in a discomfiting way. The only ameliorating thing is the lifetime tenure and that may matter less over time. It’s time we acknowledged this in the nomination process and end the nomination “rules” fictions so we can properly assess these nominees through the very real ideological/political lens rather than pretend otherwise.

Adam: I think it’s an inevitable result of the parties evolving from ideologically heterogeneous to ideologically homogeneous. The reason why there were so many “mistakes” liberal justices appointed by Republicans and one conservative appointed by a Democrat, Byron White, was at least in part because presidents had to appease different ideological wings of their own party. (It might even explain Souter since George H.W. Bush, his chief of staff who pushed for Souter, John Sununu, and Souter himself came from the moderate New England wing of the GOP, of which Susan Collins is the hardy surviving member.) Now that the most liberal Republican in each house of Congress is more conservative than the most conservative Democratic member, there is a huge downside and no upside to a Republican choosing an ideological liberal or a Democrat choosing an ideological conservative.

So we therefore have a Supreme Court where, like Congress, the most liberal Republican appointee, Kennedy, is more conservative than the most conservative Democratic appointee (either Breyer or Kagan, depending on your perspective). I do think that life tenure, the robes, and the common law needs to base judicial decisions in reason and precedent does still remove the judiciary from politics in a way that Congress is never removed. Example: conservative Kentucky senator (and awesome pitcher) Jim Bunning installed his own son, David Bunning, as a district court judge. Seems like he would just be a politician in judicial robes Yet Bunning was the one to enforce the Obergefell decision and hold Kentucky Rowan County official Kim Davis in contempt.

Lena:Almost: In our lifetime, we haven’t had a majority of Supreme Court justices who probably are in line with where we tend to be. But the perception hasn’t been there and that’s pretty deliberate. There’s been a movement afoot for decades to try to make sure there would be more reliable justices who aren’t disappointments (Chief Justice Roberts is still invoked in angry rants by Rs). This seems to be the trend.

Perception is perhaps even more important. The process for how judges get to the bench = political. But our system of government and legitimizing our justice system depends on people believing the system is independent and fair. The courthouse doors have to be open to everyone. These confirmation processes can be helpful in terms of raising awareness and educating people about the courts. But the R said/did vs D said/did doesn’t help.

Litmus tests and campaigning with a list of potential nominees also serves only to politicize this process.

Some ways to depoliticize: timelines, terms

Programming note: Season finale in a few weeks

We have surprises and special guests. No peeking.

]]>Yadda yadda yadda, he got confirmed. And the seat is stolen. And he always should be referred to as Justice Gorsuch*

*Seat stolen by GOP, 2016-2017.

Before reactions… a toast to Sen. Merkley for his voice filibuster this week. All night long, y’all.

Reaction to the filibuster, the nuclear explosion and Justice Asterisk?

Adam: I think filibusters are dumb. The Senate’s filibuster history is a total accident. The VP one day just up and ruled the previous question motion out of order because there was no reason to have a rule cutting off debate when there was such a tiny body. Then at some point, when the Senate got larger, people realized that unlimited debate could stop action on things they didn’t like. At one point, we did have people like Daniel Webster and Henry Clay in the Senate, but that isn’t the way it’s been for most of our history. It’s been more like people like Mitch McConnell and Ted Cruz, orators so grating, you have turn them off.

That said, what’s worse is changing norms and rules right and left to steal a seat and then fill that seat.

And what’s even worse is people who don’t understand the rules. Hey, Senate Dems, an appeal of the ruling of the chair is debatable and therefore filibusterable.

Lena: I love deliberative representative democracy. Legislation should take time because it should be done well. Nominations should be thoughtful, and that whole Article II Section 2 Advice and Consent piece seems to indicate is important.

I appreciate that this is all politics and results of elections. And I don’t think elections should be viewed as a winner takes all. I’m weary of the tyranny of the majority. And so, I appreciate tools available to the minority party so that they, too, can have a voice. What I feel about the filibuster is probably some idealized version that politicians would take to the floor and espouse their views. They could signal issues with a debate, and people, particularly other politicians would listen. The filibuster is therefore one of the tools I thought was important. However, the way that it has been used is not what what I believe it was intended to do. It’s become ineffective.

For what happened, I felt that this change shouldn’t be called nuclear because let’s not desensitize ourselves. It’s a change in rules. But I do think this move is horrible. This is what happened b/c this White House and Senate majority are in the winner-takes-all mode.

To get to this point, it’s been political and everyone is blaming the other party. And all under false equivalencies (as we’ve discussed previously) and a sense of inevitability (McConnell made this clear long ago).

In the Executive Business meeting on Monday and in most press statement, Rs have been lamenting “having to make this change” it didn’t seem like anyone could persuade McConnell. And maybe they didn’t want to. McConnell high 5ed Cornyn after the change and then McConnell all thumbs up.

Disappointed: Schumer et al should have used the 30 hours post cloture to debate this nomination. At a minimum, make speeches and use the tools and time.

Justice Asterisk? He’ll be forever known as the litmus tested justice. I hope that instills in him an even further appreciation for the need to be independent. To check himself as he hears cases and writes opinions. But I’m not hopeful based on his record. Sure, there will be times people will tell me “see, not so bad.” But I’m starting to believe Trump and people’s past record that got them to the point where folks say “you need this guy b/c he’ll overturn Roe and the NRA’s version of the Second Amendment”

[Tim: Rick Hasen Q to his Twitter followers: When will Justice Gorsuch* first rule in a way contrary to conservatives? My answer: Never.]

Tim: I’ve always felt ambivalent about the filibuster. I mentioned it on episode 018, aka the “let’s talk everyone off the ledge” episode of the pod. Also known as “Tim slaps an explicit tag on the pod.”

I understand why the Dems filibustered and I understand why the GOP went nuclear, even if I still bristle mightily at the larceny of the seat.

Other non-SCOTUS-focused media seemed surprised there was so little energy behind the two sides, even if there was high antipathy. I think the reason was very clear... by about 10pm ET on November 8th… before the final votes were cast, but right about when it was clear Trump was going to win… today’s outcome was preordained. The identity of Justice Asterisk was unknown, but the dance card was set. Perhaps that’s the saddest part of all of this… the Court may one day revert to being above politics, but I can’t forsee a day in my lifetime when it won’t be. Too many burned bridges.

I question what the new paradigm is… It may be seats on the Court are only filled when the same party holds the Senate and the White House. That means long-term vacancies during divided government. It means POTUS and Senate campaigns with SCOTUS shortlists. It seems to be the inevitable outcome here, but I hope I’m wrong.

Adam: Before I started working on judicial nominees, I had no idea the extent to which home-state senators were involved in judge-picking. When the president and both home-state senators are from the same party, the senators basically pick the trial court judges and sometimes the court of appeals judges. When at least one senator is from a different party, they basically have a veto on the court picks as long as either their party controls the Senate or they don’t abuse it.

There are not a large number of examples of Judiciary Committee chairmen holding hearings and votes without receiving blue slips from both Senate even though they have officially left themselves room to ignore the blue slips. Orrin Hatch did it for 4 nominees in 2004 under heavy pressure from the rest of his caucus, but he wasn’t happy about it. I get the sense that Grassley really doesn’t give a darn about the norms of the Senate (hi, ex-Sen. Norm Coleman) and McConnell certainly doesn’t. And Trump assuredly doesn’t. I think it’s over.

Tim: Bottom line: this is court packing, pure and simple. And court packing by eliminating a norm that assured moderation in states with split party representation. Norms aren’t laws and the GOP knows it can change these norms without getting nailed on it. They did it for Garland, and they’re doing it for lower court judges should this blue slip rumor be true.

The modern nomination process has produced a judiciary as political as the other branches

Agree or disagree?

Tim: The Court has been ideologically divided along different lines for a long time… back to Marbury days. But since the Bork nomination, the politics of nominations has politicized the judiciary in a discomfiting way. The only ameliorating thing is the lifetime tenure and that may matter less over time. It’s time we acknowledged this in the nomination process and end the nomination “rules” fictions so we can properly assess these nominees through the very real ideological/political lens rather than pretend otherwise.

Adam: I think it’s an inevitable result of the parties evolving from ideologically heterogeneous to ideologically homogeneous. The reason why there were so many “mistakes” liberal justices appointed by Republicans and one conservative appointed by a Democrat, Byron White, was at least in part because presidents had to appease different ideological wings of their own party. (It might even explain Souter since George H.W. Bush, his chief of staff who pushed for Souter, John Sununu, and Souter himself came from the moderate New England wing of the GOP, of which Susan Collins is the hardy surviving member.) Now that the most liberal Republican in each house of Congress is more conservative than the most conservative Democratic member, there is a huge downside and no upside to a Republican choosing an ideological liberal or a Democrat choosing an ideological conservative.

So we therefore have a Supreme Court where, like Congress, the most liberal Republican appointee, Kennedy, is more conservative than the most conservative Democratic appointee (either Breyer or Kagan, depending on your perspective). I do think that life tenure, the robes, and the common law needs to base judicial decisions in reason and precedent does still remove the judiciary from politics in a way that Congress is never removed. Example: conservative Kentucky senator (and awesome pitcher) Jim Bunning installed his own son, David Bunning, as a district court judge. Seems like he would just be a politician in judicial robes Yet Bunning was the one to enforce the Obergefell decision and hold Kentucky Rowan County official Kim Davis in contempt.

Lena: Almost: In our lifetime, we haven’t had a majority of Supreme Court justices who probably are in line with where we tend to be. But the perception hasn’t been there and that’s pretty deliberate. There’s been a movement afoot for decades to try to make sure there would be more reliable justices who aren’t disappointments (Chief Justice Roberts is still invoked in angry rants by Rs). This seems to be the trend.

Perception is perhaps even more important. The process for how judges get to the bench = political. But our system of government and legitimizing our justice system depends on people believing the system is independent and fair. The courthouse doors have to be open to everyone. These confirmation processes can be helpful in terms of raising awareness and educating people about the courts. But the R said/did vs D said/did doesn’t help.

Litmus tests and campaigning with a list of potential nominees also serves only to politicize this process.

Some ways to depoliticize: timelines, terms

Programming note: Season finale in a few weeks

We have surprises and special guests. No peeking.

]]>01:17:17yesAdvice & Consent 30: Almost to nuclear, listener mail and 3 principled reasons to oppose GorsuchTue, 04 Apr 2017 03:26:41 +0000The Senate Judiciary Committee voted on a party line vote to refer Judge Gorsuch to the full Senate. Most whip counts show 41 Senators who intend to vote no on cloture. We're probably going nuclear. So perhaps its time for listener mail? Also, three principled reasons to oppose Judge Gorsuch as Associate Justice.

The Judiciary Committee votes

Yadda yadda yadda, Gorsuch got reported out of committee on party lines

But are there non-nuclear options?

There are reasons why the 2 speech rule hasn’t been used to cut off debate before (and note to The Federalist, the Civil RIghts Act of 1964 passed because the Senate invoked cloture, not because of the Two-Speech Rule--I think the author knows that and uses the weasel words that the 2-speech rule was a “key component” to passing the act rather than saying it was what ended the filibuster. Here’s a description of the filibuster vote:https://www.senate.gov/artandhistory/history/minute/Civil_Rights_Filibuster_Ended.htm.

First, let’s say that 10 Dems burn their first speech before realizing this is the Dem strategy. Well, given that there have to be at least 41 senators to sustain a filibuster, that still leaves 31 senators with 2 speeches and 10 more with one speech, meaning there are 72 speeches left to go before the Senate can confirm anyone, and those 72 speeches will then take a long time. And the Senate cannot move onto other business while the filibuster is pending (absent unanimous consent). Also, Democrats have the ability to force Republicans to come to the Senate floor in the middle of the night to vote on motions to adjourn (which can be decided by less than a quorum and, if they happened to be successful, restart the 2-speech rule because a new legislative day starts).

Second, all the Senate needs to do to get around the 2-speech rule is start a round of debate on a new issue. Therefore, Republicans would have to be extremely vigilant and immediately table motions topostpone indefinitely,To postpone to a day certain, or to commit,each of which can be propounded while another question is pending and each of which would create a new subject if debate started on the motion and therefore would allow senators who had already spoken twice on Gorsuch to speak again. They would also have to make sure they didn’t accidentally start a new debate topic by, for instance, beginning a debate on whether a senator’s remarks violated the rules of decorum, as they did with Sen. Warren, because once again, this would be a new topic of debate.

All that is to say that I once read through the Senate rules, hit on Rule XIX and said, “hey, maybe there is another way to stop a filibuster.” But then I realized that I wasn’t the first young D.C. activist to read the Senate rules, so maybe it was a bit more complicated. Since then, I’ve both studied the two-speech rule and asked people who worked in the Senate about it. Which leads me to my answer: That’s not the way anyone will cut off the Gorsuch debate.

We got mail

Hello, to begin with I want to thank you for this very informative podcast. Everyone of the "gang" seems to have good knowledge of the issues relevant to the Supreme Court and history of the Court. I enjoy the chats and I always learn something from each episode.

Being a conservative, for the most part I'm not bothered by the clear and strong liberal leaning of the panel. I often agree with your criticism against the Republican party and even when I disagree I understand where you're coming from.

I do want to mention a couple of things that I think the panel missed because of their liberal leaning. These are my opinions.

1) It is not reasonable to filibuster Gorsuch on merit grounds. Given the support he has received from his fellow judges and lawyers, it's not reasonable to doubt his merit or mainstream status. If he is not mainstream, the word has lost its meaning. (I understand the desire to filibuster to make a political statement.)

RGOTUS RESPONSE:

Tim:Not sure we agree on the meaning of mainstream in this context. I would propose Gorsuch is part of judicial movement conservatism that is not mainstream, which can be reasonably disagreed with and therefore he may be reasonably opposed. We throw around terms like “mainstream” and “qualified” and often don’t define these words the same way. I think the three of us agree it’s perfectly reasonable to support or oppose a nominee based on their judicial philosophy, even if they have impeccable education and professional credentials. You can be a likeable person, raise a good family, have loads of lawyers say nice things about you and may still be reasonably opposed on the merits of your judicial philosophy. And that goes for everyone, not just Judge Gorsuch.

Lena:Agree on not agreeing with the meaning of mainstream. And that’s probably the rub. Maybe he’d be mainstream a long time ago but a man who can’t say Griswold is rightly decided and somehow says he can’t imagine a state limiting access to contraception (even though he did wish to limit access to contraception or at least allow corporate employers to do so) doesn’t fit my definition of mainstream.

Admittingly, I don’t expect someone I would embrace fully on the bench. But someone I can respect because of how they get there is a really terrific start. I can’t get there with Gorsuch.

Adam:You can’t judge by a nominee’s supporters. There is a whole game out there of people trying to get better positions in DC some day (or just being part of the old boy’s network). E.g., Estrada’s support of Kagan.

2) Similarly, it is utterly un-reasonable if Republicans voted down Garland in an up-or-down vote. I think Lena mentioned that she would be okay with it. I think she was not being totally honest. Garland absolutely should have been confirmed in an up-or-down vote.

RGOTUS RESPONSE:

Tim:Lena is very honest, but thanks. Had Senate Republicans taken the political “risk” of opposing Garland because of a disagreement over judicial philosophy, that would have been preferable to what happened. However, Republicans calculated they could avoid this political by declaring SCOTUS nominating season over with no basis in law or fact. I believe the technical term for this is “bullshit.” (Sounds like we agree on that). Had the GOP Senate followed norms and voted Garland down, I’m sure we wouldn’t have agreed with the outcome, but we would have been much more “ok” with things compared to what went down. Which was, again, bullshit.

Lena: Yup. Pretty much really telling the truth there. Sure, I would’ve hollered about how horrible he was treated if voted down, but would rather he be voted down and we get ourselves a new nominee (something totally possible when the Rs have the majority, BTW) so we can at some point get to this.

I’m particular bent out of shape because I keep hearing that Ds have and/or would’ve done this and have advocated for it too. But I just don’t see that 1) that’s the case (Kennedy in 1988, an election year; Bork getting a hearing and a vote) or 2) it’s true. I think the minimization of “this is just politics” is really harmful.

3) It is often said that Garland is the most qualified supreme court nominee ever. What I find interesting is that if that's the case, why didn't Obama appoint him for the (not one, but) two vacancies he filled earlier? Do you really think Kagan is more qualified than Garland? I suspect it's your liberal leaning that prevents you from discussing this.

RGOTUS REPONSE:

Tim:I think I respectfully reject the premise of the comment. An observation in response: Conservatives seem to have fealty to identifying “the” (meaning singular) “best” person who should always get the nod for anything. Life - and by extension SCOTUS noms - is so much more a shades of gray thing. There are a limited number of people who are qualified to serve, but it’s a pool, not an ordinated list. A timely analogy is it’s more like the NCAA tournament. Does the #1 seed of the tournament always end up #1? Ask Villanova… they’d say, no! But Gonzaga and Carolina certainly qualified to get in and one will be crowned national champion tonight despite not being “the” #1 team. Likewise, one person’s “best” candidate may not get the nod, but someone who is qualified does. Politics, timing, etc. all weigh in. So if someone says Garland was somehow more qualified than Kagan or Sotomayor, (a) that is far from a universal opinion, and (b) who cares so long as the three of them were qualified? It’s the President’s role to suss out the pool and choose a name. The Senate takes it from there.

Adam:My real answer: The context is that we're living in a time where, absent a desire to compromise, it makes no sense for either liberals or conservatives to appoint older people who stand a greater chance of being replaced by a POTUS with the other philosophy, so age has to be a factor in qualification. Garland is 8 years older, and therefore not as qualified on that measure.

Gotcha answer: Kagan was nominated to the DC Circuit by Clinton. If Rs hadn't refused to give her even a hearing (sound familiar), she'd have been pretty qualified. Being blocked by Rs, she did pretty well for qualifications: Harvard Law dean and SG. If Obama was to pass her over for not being a judge, it would mean eliminating a very qualified person because of GOP malfeasance, which seems wrong.

Complicated answer: Picking people on qualifications alone isn't the best idea. Look at Taft: prosecutor, private practice, territorial governor, SG, AG, state trial court judge, federal appellate judge, president of the United States, for heaven's sake. Beats Garland by quite a bit. But few list him as a great justice. Beyond a certain point, qualifications alone don't really make for a better justice

Lena: I think there are other aspects and qualities beyond sterling credentials. Questions a PResident must ask himself or herself or whichever organizations they outsource it to. What would the Court benefit from? This is when things like age, ideology, professional and demographic diversity is important. And I can absolutely see how and why President Obama may not have prioritized a moderate white man at that point in his presidency.

There are many reasons someone gets the nod as Tim says. Kagan very well qualified. May not have served on the bench (for reasons Adam noted), but that can be an asset. As can having someone who was in the legislature. Also, a-okay if we go with a nominee who didn’t go to an Ivy League school.

I think Garland got the nod last year because Rs supported him and he wanted to show he was coming to the table with a nominee they could accept; someone who could get 60 votes. But they wouldn’t entertain this.

--

Tim: This was a really thoughtful email and we appreciate it… I think my favorite aspect was when the writer said we’ve been able to convey where we’re coming from even when he disagrees with the point. That’s kind of the north star for this show, so thanks for listening.

Three principled reasons to oppose Judge Gorsuch as Associate Justice

NO ORDINARY CONSERVATIVE

Gorsuch is a judicial “movement” conservative that has been an active force in political and legal shifts away from settled areas of law. The aim of Gorsuch and fellow members of The Federalist Society is no less than a complete dismantling of norms and laws that produced important holdings for the last 50+ years (sometimes more). Make no mistake: his nomination isn’t intended as a replacement of Scalia, it’san enhancement.

Paradoxically, we don’t know enough about his aims and intentions either. The modern stance of nominees before the committee and the American public is to clam up on any topic likely to elucidate even a glimmer of an idea of their stance on important topics of the day. This opacity isn’t limited to Republican nominees… it was a feature of nominees by Presidents Clinton and Obama as well.

STOLEN SEAT

It’s almost a cliche by now that this seat was “stolen” by Republican members of the US Senate. While we’ve noted before on the pod that the intentional withholding of the Senate advice and consent process of Merrick Garland by Republican leaders was notper seunconstitutional, it certainly violated the norms of the US Senate, and -- perhaps more importantly -- the will of each and every Obama voter in the 2012 election. Observers may laud the demonstrations following the election of President Trump, but they should also cast a disdainful look at the failure to do so during a shameful quiet period in the spring of 2016.

PRESIDENT UNDER FIRE

The questions surrounding the link between confirmed Russian meddling in the 2016 Presidential election and the campaign itself undermines the legitimacy of the sitting President. Although there is no evidence that the election results themselves are questionable, the possibility that a member of the President’s campaign -- or even the President himself -- aided in the interference of our election process undermines the moral authority for this President to make any appointments that could outlive his term of office until those questions are investigated and answered by an independent authority.

Lena

A little nuance to #1: the lack of answers which I think made Judge Gorsuch hard to take seriously and trust. (e.g.,QFRs) And the “Ginsburg rule” is not a thing.

This is a lifetime appointment. This is really serious.

This is precisely what McConnell wanted. And I think he wanted it because he cares about his party (and corporate influence that the Court unleashed in Citizens United) and does so at all costs. To date, he seems to evade any backlash and isn’t held accountable.

Tim: Congratulations Mitch McConnell. Your legacy is just about cemented. You’ll get drinks bought for you in the back room of cigar smoke-filled clubs, with slaps on the back and knowing smiles from old dudes for for the rest of your life. You win. Oh... but maybe not. Because a lot of people really know what went down beyond the likely confirmation of someone who shouldn’t be there this round. Yes, this was a game of political brinksmanship that you won, but the long game and the judgement of history counts for something. I hope you don’t think your legacy is a reflection of those drinks and backslaps. It’s far different, and far more embarrassing for its political crassness in the face of institutions far, far greater

]]>The Senate Judiciary Committee voted on a party line vote to refer Judge Gorsuch to the full Senate. Most whip counts show 41 Senators who intend to vote no on cloture. We're probably going nuclear. So perhaps its time for listener mail? Also, three principled reasons to oppose Judge Gorsuch as Associate Justice. The Judiciary Committee votes

Yadda yadda yadda, Gorsuch got reported out of committee on party lines

There are reasons why the 2 speech rule hasn’t been used to cut off debate before (and note to The Federalist, the Civil RIghts Act of 1964 passed because the Senate invoked cloture, not because of the Two-Speech Rule--I think the author knows that and uses the weasel words that the 2-speech rule was a “key component” to passing the act rather than saying it was what ended the filibuster. Here’s a description of the filibuster vote: https://www.senate.gov/artandhistory/history/minute/Civil_Rights_Filibuster_Ended.htm.

First, let’s say that 10 Dems burn their first speech before realizing this is the Dem strategy. Well, given that there have to be at least 41 senators to sustain a filibuster, that still leaves 31 senators with 2 speeches and 10 more with one speech, meaning there are 72 speeches left to go before the Senate can confirm anyone, and those 72 speeches will then take a long time. And the Senate cannot move onto other business while the filibuster is pending (absent unanimous consent). Also, Democrats have the ability to force Republicans to come to the Senate floor in the middle of the night to vote on motions to adjourn (which can be decided by less than a quorum and, if they happened to be successful, restart the 2-speech rule because a new legislative day starts).

Second, all the Senate needs to do to get around the 2-speech rule is start a round of debate on a new issue. Therefore, Republicans would have to be extremely vigilant and immediately table motions to postpone indefinitely,To postpone to a day certain, or to commit, each of which can be propounded while another question is pending and each of which would create a new subject if debate started on the motion and therefore would allow senators who had already spoken twice on Gorsuch to speak again. They would also have to make sure they didn’t accidentally start a new debate topic by, for instance, beginning a debate on whether a senator’s remarks violated the rules of decorum, as they did with Sen. Warren, because once again, this would be a new topic of debate.

All that is to say that I once read through the Senate rules, hit on Rule XIX and said, “hey, maybe there is another way to stop a filibuster.” But then I realized that I wasn’t the first young D.C. activist to read the Senate rules, so maybe it was a bit more complicated. Since then, I’ve both studied the two-speech rule and asked people who worked in the Senate about it. Which leads me to my answer: That’s not the way anyone will cut off the Gorsuch debate.

Hello, to begin with I want to thank you for this very informative podcast. Everyone of the "gang" seems to have good knowledge of the issues relevant to the Supreme Court and history of the Court. I enjoy the chats and I always learn something from each episode.

Being a conservative, for the most part I'm not bothered by the clear and strong liberal leaning of the panel. I often agree with your criticism against the Republican party and even when I disagree I understand where you're coming from.

I do want to mention a couple of things that I think the panel missed because of their liberal leaning. These are my opinions.

1) It is not reasonable to filibuster Gorsuch on merit grounds. Given the support he has received from his fellow judges and lawyers, it's not reasonable to doubt his merit or mainstream status. If he is not mainstream, the word has lost its meaning. (I understand the desire to filibuster to make a political statement.)

RGOTUS RESPONSE:

Tim: Not sure we agree on the meaning of mainstream in this context. I would propose Gorsuch is part of judicial movement conservatism that is not mainstream, which can be reasonably disagreed with and therefore he may be reasonably opposed. We throw around terms like “mainstream” and “qualified” and often don’t define these words the same way. I think the three of us agree it’s perfectly reasonable to support or oppose a nominee based on their judicial philosophy, even if they have impeccable education and professional credentials. You can be a likeable person, raise a good family, have loads of lawyers say nice things about you and may still be reasonably opposed on the merits of your judicial philosophy. And that goes for everyone, not just Judge Gorsuch.

Lena: Agree on not agreeing with the meaning of mainstream. And that’s probably the rub. Maybe he’d be mainstream a long time ago but a man who can’t say Griswold is rightly decided and somehow says he can’t imagine a state limiting access to contraception (even though he did wish to limit access to contraception or at least allow corporate employers to do so) doesn’t fit my definition of mainstream.

Admittingly, I don’t expect someone I would embrace fully on the bench. But someone I can respect because of how they get there is a really terrific start. I can’t get there with Gorsuch.

Adam: You can’t judge by a nominee’s supporters. There is a whole game out there of people trying to get better positions in DC some day (or just being part of the old boy’s network). E.g., Estrada’s support of Kagan.

2) Similarly, it is utterly un-reasonable if Republicans voted down Garland in an up-or-down vote. I think Lena mentioned that she would be okay with it. I think she was not being totally honest. Garland absolutely should have been confirmed in an up-or-down vote.

RGOTUS RESPONSE:

Tim: Lena is very honest, but thanks. Had Senate Republicans taken the political “risk” of opposing Garland because of a disagreement over judicial philosophy, that would have been preferable to what happened. However, Republicans calculated they could avoid this political by declaring SCOTUS nominating season over with no basis in law or fact. I believe the technical term for this is “bullshit.” (Sounds like we agree on that). Had the GOP Senate followed norms and voted Garland down, I’m sure we wouldn’t have agreed with the outcome, but we would have been much more “ok” with things compared to what went down. Which was, again, bullshit.

Lena: Yup. Pretty much really telling the truth there. Sure, I would’ve hollered about how horrible he was treated if voted down, but would rather he be voted down and we get ourselves a new nominee (something totally possible when the Rs have the majority, BTW) so we can at some point get to this.

I’m particular bent out of shape because I keep hearing that Ds have and/or would’ve done this and have advocated for it too. But I just don’t see that 1) that’s the case (Kennedy in 1988, an election year; Bork getting a hearing and a vote) or 2) it’s true. I think the minimization of “this is just politics” is really harmful.

3) It is often said that Garland is the most qualified supreme court nominee ever. What I find interesting is that if that's the case, why didn't Obama appoint him for the (not one, but) two vacancies he filled earlier? Do you really think Kagan is more qualified than Garland? I suspect it's your liberal leaning that prevents you from discussing this.

RGOTUS REPONSE:

Tim: I think I respectfully reject the premise of the comment. An observation in response: Conservatives seem to have fealty to identifying “the” (meaning singular) “best” person who should always get the nod for anything. Life - and by extension SCOTUS noms - is so much more a shades of gray thing. There are a limited number of people who are qualified to serve, but it’s a pool, not an ordinated list. A timely analogy is it’s more like the NCAA tournament. Does the #1 seed of the tournament always end up #1? Ask Villanova… they’d say, no! But Gonzaga and Carolina certainly qualified to get in and one will be crowned national champion tonight despite not being “the” #1 team. Likewise, one person’s “best” candidate may not get the nod, but someone who is qualified does. Politics, timing, etc. all weigh in. So if someone says Garland was somehow more qualified than Kagan or Sotomayor, (a) that is far from a universal opinion, and (b) who cares so long as the three of them were qualified? It’s the President’s role to suss out the pool and choose a name. The Senate takes it from there.

Adam: My real answer: The context is that we're living in a time where, absent a desire to compromise, it makes no sense for either liberals or conservatives to appoint older people who stand a greater chance of being replaced by a POTUS with the other philosophy, so age has to be a factor in qualification. Garland is 8 years older, and therefore not as qualified on that measure.

Gotcha answer: Kagan was nominated to the DC Circuit by Clinton. If Rs hadn't refused to give her even a hearing (sound familiar), she'd have been pretty qualified. Being blocked by Rs, she did pretty well for qualifications: Harvard Law dean and SG. If Obama was to pass her over for not being a judge, it would mean eliminating a very qualified person because of GOP malfeasance, which seems wrong.

Complicated answer: Picking people on qualifications alone isn't the best idea. Look at Taft: prosecutor, private practice, territorial governor, SG, AG, state trial court judge, federal appellate judge, president of the United States, for heaven's sake. Beats Garland by quite a bit. But few list him as a great justice. Beyond a certain point, qualifications alone don't really make for a better justice

Lena: I think there are other aspects and qualities beyond sterling credentials. Questions a PResident must ask himself or herself or whichever organizations they outsource it to. What would the Court benefit from? This is when things like age, ideology, professional and demographic diversity is important. And I can absolutely see how and why President Obama may not have prioritized a moderate white man at that point in his presidency.

There are many reasons someone gets the nod as Tim says. Kagan very well qualified. May not have served on the bench (for reasons Adam noted), but that can be an asset. As can having someone who was in the legislature. Also, a-okay if we go with a nominee who didn’t go to an Ivy League school.

I think Garland got the nod last year because Rs supported him and he wanted to show he was coming to the table with a nominee they could accept; someone who could get 60 votes. But they wouldn’t entertain this.

--

Tim: This was a really thoughtful email and we appreciate it… I think my favorite aspect was when the writer said we’ve been able to convey where we’re coming from even when he disagrees with the point. That’s kind of the north star for this show, so thanks for listening.

Three principled reasons to oppose Judge Gorsuch as Associate Justice NO ORDINARY CONSERVATIVE

Gorsuch is a judicial “movement” conservative that has been an active force in political and legal shifts away from settled areas of law. The aim of Gorsuch and fellow members of The Federalist Society is no less than a complete dismantling of norms and laws that produced important holdings for the last 50+ years (sometimes more). Make no mistake: his nomination isn’t intended as a replacement of Scalia, it’s an enhancement.

Paradoxically, we don’t know enough about his aims and intentions either. The modern stance of nominees before the committee and the American public is to clam up on any topic likely to elucidate even a glimmer of an idea of their stance on important topics of the day. This opacity isn’t limited to Republican nominees… it was a feature of nominees by Presidents Clinton and Obama as well.

STOLEN SEAT

It’s almost a cliche by now that this seat was “stolen” by Republican members of the US Senate. While we’ve noted before on the pod that the intentional withholding of the Senate advice and consent process of Merrick Garland by Republican leaders was not per se unconstitutional, it certainly violated the norms of the US Senate, and -- perhaps more importantly -- the will of each and every Obama voter in the 2012 election. Observers may laud the demonstrations following the election of President Trump, but they should also cast a disdainful look at the failure to do so during a shameful quiet period in the spring of 2016.

PRESIDENT UNDER FIRE

The questions surrounding the link between confirmed Russian meddling in the 2016 Presidential election and the campaign itself undermines the legitimacy of the sitting President. Although there is no evidence that the election results themselves are questionable, the possibility that a member of the President’s campaign -- or even the President himself -- aided in the interference of our election process undermines the moral authority for this President to make any appointments that could outlive his term of office until those questions are investigated and answered by an independent authority.

Lena

A little nuance to #1: the lack of answers which I think made Judge Gorsuch hard to take seriously and trust. (e.g., QFRs) And the “Ginsburg rule” is not a thing.

This is a lifetime appointment. This is really serious.

This is precisely what McConnell wanted. And I think he wanted it because he cares about his party (and corporate influence that the Court unleashed in Citizens United) and does so at all costs. To date, he seems to evade any backlash and isn’t held accountable.

Tim: Congratulations Mitch McConnell. Your legacy is just about cemented. You’ll get drinks bought for you in the back room of cigar smoke-filled clubs, with slaps on the back and knowing smiles from old dudes for for the rest of your life. You win. Oh... but maybe not. Because a lot of people really know what went down beyond the likely confirmation of someone who shouldn’t be there this round. Yes, this was a game of political brinksmanship that you won, but the long game and the judgement of history counts for something. I hope you don’t think your legacy is a reflection of those drinks and backslaps. It’s far different, and far more embarrassing for its political crassness in the face of institutions far, far greater

]]>01:11:41yesAdvice & Consent 29: A Hearing Wrap-up & a Political AssessmentWed, 29 Mar 2017 03:33:17 +0000The Senate Judiciary Committee hearings have concluded, and we're now counting votes. What's the ragtag gang of the usual suspects (ha, that's "RGOTUS") political assessment? We're less than a week away from the committee vote and less than two from the promised floor vote.

Hearing wrapup

Political Assessment

Republicans need to decide if they’re willing to go nuclear to put Neil Gorsuch on the Court.

AreanyRs not up for this fight, but also willing to publicly side with Ds and against the vast majority of the R electorate?

Do any of their names rhyme with Skritch Buconnell?

Democrats need to decide if opposition is “worth it” enough to burn the filibuster now, even if it is easily circumvented by the nuclear option.

Do red state Ds up for reelection perceive a threat to their chances if they oppose?

Do D’s generally feel pressure to oppose from the increasingly active base?

Adam

Given that one of the main ways that this seemingly foregone conclusion of cloture vote fails, nuclear option invoked, Gorsuch confirmed by majority vote will be derailed is by a last-minute deal between Dems and Rs to preserve the filibuster for a future nominee but not use it on Gorsuch, I want to talk about the last time such a deal happened.

In 2001-02, Democrats had control of the Senate and dealt with a slew of some of the most out-of-the-mainstream circuit court nominees, allowing several through but blocking 2 in the Judiciary Committee. Dems lost their majority in the ‘02 election, and decided to filibuster the nominees they had blocked as well as several other nominees. Fortuitously, at the same time, Robert Caro publishedMaster of the Senate,third of the fourth in his Years of Lyndon Johnson series, which detailed the passage of the Civil Rights Act of 1957 with LBJ as Senate Majority Leader. No civil rights bill had been passed since 1875 and the Eisenhower administration was trying to woo African Americans back to their traditional home in the Republican Party, which they had been leaving as they moved north and after Truman integrated the army and Ds put a civil rights plank in their platform in ‘48 and the administration set its sights on passing a civil rights bill. Caro described a trick to get around the filibuster by having the VP, the president of the Senate, Nixon at the time, declare that the filibuster was unconstitutional and then have a majority of the Senate agree with that ruling. LBJ eventually defused this action and passed the bill with a large majority of both Ds voting for it, but Trent Lott, who was almost the majority leader in 2003, but had to step aside after praising Strom Thurmond’s 1948 segregationist run for the president, said that using this method to get around the filibuster would work, but it would be the “nuclear option” because it would blow up the Senate. Dems did not heed Lott, and filibustered more than 10 nominees.

In the 2004, Rs expanded their majority from 51 to 55 and immediately suggested that they would go nuclear if Democrats filibustered again. This was particularly important because Rehnquist had been diagnosed with cancer and a SCOTUS vacancy was likely. The Senate spent the first few months confirming less controversial nominees but ran out of nominees to confirm by May at which point then-Senate Majority Leader Bill Frist scheduled a confirmation vote on one of the previously filibustered nominees. Both sides were lobbying very hard, and it became clear that there were 49 Republican senators in favor of the nuclear option, and Arlen Specter (a Republican at them time) was the only one undeclared. Democrats were pretty sure that Specter--who was Judiciary Committee chairman at the time and would lose the seat if he went against the rest of his caucus--would vote for the nuclear option if the vote were called. So 14 senators, 7 Rs and 7 Ds came together to say that they would not vote for the nuclear option (meaning there were less than 50 votes for the nuclear option) and would not vote to filibuster a nominee (meaning any filibuster vote would fail) unless the group (which dubbed itself the Gang of 14) came to an agreement that there were extraordinary circumstances meriting a filibuster.

A few of Bush’s nominees did fall by the wayside, although some were definitely not due to the deal and some were only questionably due to the deal. The ones that failed were Miguel Estrada for the D.C. Circuit, Terry Boyle for the 4th Circuit, Charles Pickering for the 5th Circuit, Henry Saad for the 6th Circuit and William Myers and Carolyn Kuhl for the Ninth Circuit. The ones that went through directly due to the deal were William Pryor for the 11th Circuit, Janice Rogers Brown for the DC Circuit, and Priscilla Owen for the 5th Circuit.

Now, everyone knew that the Rs on the Gang of 14 would never agree that there were extraordinary circumstances, so that the filibuster was gone. But the thought was that Ds had no leverage, and the best they could do was keep the filibuster alive (although on life support) for another day. Now that this other day has come, with Republicans stealing a Supreme Court seat, I don’t see Democrats thinking that if they give up on the filibuster here, they will ever be able to use the filibuster at a future time when there are extreme circumstances.

Lena

Rs inclined to oppose (e.g. Flake, Murkowski, Collins, Graham, Heller) but I think McConnell will decide and everyone will fall in line. But they’ll be blaming the Democrats for causing this. The other option, however, is that they reject the nomination and come back with someone who is more moderate.

Some Ds are worried but have a few factors: 1) inevitability, 2) energizing the base. Some Ds think Trump will only nominate someone worse during the next vacancy. And there’s fear there could be 2 or so more vacancies. So I think they’re doing some calculus, which is something that’s been top of mind for folks since: 1) Gorsuch was nominated and not Pryor, 2) they are gambling with what might happen in the future and the positioning of the President, Senate, etc.

Moderate Ds who’ve already come out opposed - and are really upset with Gorsuch’s record: Senators Casey, Carper, Nelson. I think there is some momentum that’ll build as this continues. The base is upset, and while I’m not sure the # of calls rival, say DeVos’ opposition, it seems like if they don’t fight they’ll see this as a big victory - and a lifetime appointment - for Trump.

Tim

Agree with Lena… Nobody will change their vote, much less will elections swing, in 2018 over “losing” the filibuster. No. One.

A deal is being bandied about as a non-nuclear end game scenario and that’s just fantasy, unless Ds are gullible enough to believe that Rs would stand by it. The only possible one would be to have a withdrawal and a nomination and approval of Merrick Garland and a promise by Ds to stand aside for Gorsuch should another opening present itself. It sounds like a good deal, but it’s a bad one for both sides. AND LOOKS TOO MUCH LIKE A WEST WING PLOT LINE PEOPLE!

It’s hard to see this ending in any scenario other than filibuster, failure to achieve cloture, and then the nuclear option. The consequences of that… are probably for another show.

]]>The Senate Judiciary Committee hearings have concluded, and we're now counting votes. What's the ragtag gang of the usual suspects (ha, that's "RGOTUS") political assessment? We're less than a week away from the committee vote and less than two from the promised floor vote.

Republicans need to decide if they’re willing to go nuclear to put Neil Gorsuch on the Court.

Are any Rs not up for this fight, but also willing to publicly side with Ds and against the vast majority of the R electorate?

Do any of their names rhyme with Skritch Buconnell?

Democrats need to decide if opposition is “worth it” enough to burn the filibuster now, even if it is easily circumvented by the nuclear option.

Do red state Ds up for reelection perceive a threat to their chances if they oppose?

Do D’s generally feel pressure to oppose from the increasingly active base?

Adam

Given that one of the main ways that this seemingly foregone conclusion of cloture vote fails, nuclear option invoked, Gorsuch confirmed by majority vote will be derailed is by a last-minute deal between Dems and Rs to preserve the filibuster for a future nominee but not use it on Gorsuch, I want to talk about the last time such a deal happened.

In 2001-02, Democrats had control of the Senate and dealt with a slew of some of the most out-of-the-mainstream circuit court nominees, allowing several through but blocking 2 in the Judiciary Committee. Dems lost their majority in the ‘02 election, and decided to filibuster the nominees they had blocked as well as several other nominees. Fortuitously, at the same time, Robert Caro published Master of the Senate, third of the fourth in his Years of Lyndon Johnson series, which detailed the passage of the Civil Rights Act of 1957 with LBJ as Senate Majority Leader. No civil rights bill had been passed since 1875 and the Eisenhower administration was trying to woo African Americans back to their traditional home in the Republican Party, which they had been leaving as they moved north and after Truman integrated the army and Ds put a civil rights plank in their platform in ‘48 and the administration set its sights on passing a civil rights bill. Caro described a trick to get around the filibuster by having the VP, the president of the Senate, Nixon at the time, declare that the filibuster was unconstitutional and then have a majority of the Senate agree with that ruling. LBJ eventually defused this action and passed the bill with a large majority of both Ds voting for it, but Trent Lott, who was almost the majority leader in 2003, but had to step aside after praising Strom Thurmond’s 1948 segregationist run for the president, said that using this method to get around the filibuster would work, but it would be the “nuclear option” because it would blow up the Senate. Dems did not heed Lott, and filibustered more than 10 nominees.

In the 2004, Rs expanded their majority from 51 to 55 and immediately suggested that they would go nuclear if Democrats filibustered again. This was particularly important because Rehnquist had been diagnosed with cancer and a SCOTUS vacancy was likely. The Senate spent the first few months confirming less controversial nominees but ran out of nominees to confirm by May at which point then-Senate Majority Leader Bill Frist scheduled a confirmation vote on one of the previously filibustered nominees. Both sides were lobbying very hard, and it became clear that there were 49 Republican senators in favor of the nuclear option, and Arlen Specter (a Republican at them time) was the only one undeclared. Democrats were pretty sure that Specter--who was Judiciary Committee chairman at the time and would lose the seat if he went against the rest of his caucus--would vote for the nuclear option if the vote were called. So 14 senators, 7 Rs and 7 Ds came together to say that they would not vote for the nuclear option (meaning there were less than 50 votes for the nuclear option) and would not vote to filibuster a nominee (meaning any filibuster vote would fail) unless the group (which dubbed itself the Gang of 14) came to an agreement that there were extraordinary circumstances meriting a filibuster.

A few of Bush’s nominees did fall by the wayside, although some were definitely not due to the deal and some were only questionably due to the deal. The ones that failed were Miguel Estrada for the D.C. Circuit, Terry Boyle for the 4th Circuit, Charles Pickering for the 5th Circuit, Henry Saad for the 6th Circuit and William Myers and Carolyn Kuhl for the Ninth Circuit. The ones that went through directly due to the deal were William Pryor for the 11th Circuit, Janice Rogers Brown for the DC Circuit, and Priscilla Owen for the 5th Circuit.

Now, everyone knew that the Rs on the Gang of 14 would never agree that there were extraordinary circumstances, so that the filibuster was gone. But the thought was that Ds had no leverage, and the best they could do was keep the filibuster alive (although on life support) for another day. Now that this other day has come, with Republicans stealing a Supreme Court seat, I don’t see Democrats thinking that if they give up on the filibuster here, they will ever be able to use the filibuster at a future time when there are extreme circumstances.

Lena

Rs inclined to oppose (e.g. Flake, Murkowski, Collins, Graham, Heller) but I think McConnell will decide and everyone will fall in line. But they’ll be blaming the Democrats for causing this. The other option, however, is that they reject the nomination and come back with someone who is more moderate.

Some Ds are worried but have a few factors: 1) inevitability, 2) energizing the base. Some Ds think Trump will only nominate someone worse during the next vacancy. And there’s fear there could be 2 or so more vacancies. So I think they’re doing some calculus, which is something that’s been top of mind for folks since: 1) Gorsuch was nominated and not Pryor, 2) they are gambling with what might happen in the future and the positioning of the President, Senate, etc.

Moderate Ds who’ve already come out opposed - and are really upset with Gorsuch’s record: Senators Casey, Carper, Nelson. I think there is some momentum that’ll build as this continues. The base is upset, and while I’m not sure the # of calls rival, say DeVos’ opposition, it seems like if they don’t fight they’ll see this as a big victory - and a lifetime appointment - for Trump.

Tim

Agree with Lena… Nobody will change their vote, much less will elections swing, in 2018 over “losing” the filibuster. No. One.

A deal is being bandied about as a non-nuclear end game scenario and that’s just fantasy, unless Ds are gullible enough to believe that Rs would stand by it. The only possible one would be to have a withdrawal and a nomination and approval of Merrick Garland and a promise by Ds to stand aside for Gorsuch should another opening present itself. It sounds like a good deal, but it’s a bad one for both sides. AND LOOKS TOO MUCH LIKE A WEST WING PLOT LINE PEOPLE!

It’s hard to see this ending in any scenario other than filibuster, failure to achieve cloture, and then the nuclear option. The consequences of that… are probably for another show.

]]>56:36cleanAdvice & Consent 28: Gorsuch before the Judiciary CommitteeWed, 22 Mar 2017 03:45:56 +0000The Senate Judiciary Committee grilled Judge Gorsuch for nearly 10 hours today. What was the biggest fish he ever caught? Do he and his family ski? Oh and while we have him under oath for a lifetime appointment to the highest court in the land, what does he think of Chevron? The ragtag gang of the usual suspects tackle the big questions from the hearings!

Gorsuch before the Judiciary Committee

LENA GIVES A RUNDOWN

Day 1: As anticipated, all introductions.

Grassley opens

Gorsuch welcomes himself and his family (awkward hugw/wife), introduces clerks, assistant, others

Grassley Opening:

lays ground rules: Day 1 is opening statements day, Day 2 is round I questions and Senators get 30 min each, Day 3 is round II questions, maybe some witnesses, Day 4 is outside witness day; and as we know.

Vote 4/3

Opens w/Scalia quote (gov’t is one where we have a rule of law, not of men)

Tries this magic trick where he talks about coequal branches of gov’t, importance of needing a check on the executive and preservation of constitutional order; mentions tyrannical kings and the separation of powers

Feinstein: starts with Roe b/c picks up on precedent line Grassley ended on; then went into Gorsuch’s time at DOJ and involvement in torture; Gorsuch: avoided, said d/n know the emails she was talking about

Hatch: hate Chevron so loves Gorsuch; mentioned bipart support

Leahy: starts with Garland and asks if he was treated fairly. Gorsuch begins his frequent refrain that he can’t comment on politics; goes into money in politics; time at DOJ

Graham: pats himself on back mostly

Durbin: mentioned complicity, Gorsuch’s mentor Finnis

Cornyn: talked a lot about law school duration; civic engagement; originalism

Whitehouse: money in politics, dark money; anschultz

Lee: one of the lawyers “in teh well” in front of Gorsuch

Klobuchar: kept talking about not being in teh comfort of a coccoon; talks about cameras in the courtroom; disclosures; independence;

TIM GIVES HIS 10 THOUGHTS

1- Modern Judiciary Committee hearings for SCOTUS noms aren’t worthless, but they’re close. The opacity of the nominees in answering questions is a disservice to our collective ability to assess them.

2 - Gorsuch was very well prepared. Franken and Klobuchar had him closest to being on the ropes, but he reverted to well-rehearsed lines to wriggle out.

3 - The media will be coronating him if they haven’t already started, largely because of #2.

4 - A rare third amendment reference! It’s like a rare baseball card. Also: Griswold! And a weird dodge around support for the holding?

5 - Speaking of sports. Sen. Sasse’s horrible sports analogy needs to be mocked. Dems asking questions on past cases is like asking a ref to call a game for one team before the game. HELL NO. It’s like asking the ref, “how do you define travelling” or “what’s your strike zone.” I am offended as a sports fan and SCOTUS nerd.

6 - I have no proof, but I think everyone turned Ted Cruz off. It’s like Twitter went on slo mo when he was on.

7 - Speaking of constitutions, I have a weak one compared to everyone on screen. I had a live stream on in the background all day, could come and go when I wanted and I feel like I climbed Everest.

9 - Best R: Graham. No competition, unless you like stories about skiing or fishing, which frankly felt like time wasters. I’ll stipulate to the judge’s humanity and interest in things humans do.

10 - “tough case” means controversial case where I took a super “movement” stand, but want to make it seem like I was on the line.

ADAM GIVES HIS THOUGHTS

Point zero: The question of whether Gorsuch should be on the Supreme Court is truly important, and it is a shame this is the process we are using. Gorsuch styles himself an originalist. The justice who most adheres to originalism when it doesn’t strongly conflict with his own policy views is Justice Thomas. And he came out with an opinion today that is impeccable from an originalist perspective, but may be the only opinion I’ve seen that would violate the dictum (stated first either by Abe Lincoln or the very interesting Justice Robert Jackson) that the Constitution is not a suicide pact. Thomas argued that the Constitution, which requires all “principal officers” of the United States to be appointed with advice and consent of the Senate, bans the president from designating acting officers for the key positions. Therefore, if the Secretary of Defense dies, there can be NO ONE to act as Secretary of Defense until the Senate confirms a new secretary, which in this era of nukes, other WMD, cyberterrorism, and 9/11 would truly make the Constitution a suicide pact. https://www.supremecourt.gov/opinions/16pdf/14-9496_8njq.pdfStrict originalism is a very dangerous way to interpret the Constitution that conservatives came up with to attack school desegregation and reproductive freedom (no matter how many liberal legal intellectuals likeAkhil Amarhave taken up the originalist mantle).

1 Progressives have not had a strong chairman or ranking member for a Supreme Court hearing for nearly the entire period in which the Committee has held such hearings. They've either been in over their heads, Feinstein, terrible rhetorically, Pat Leahy, willing to abandon progressives when he was most needed, Biden, a pro-segregationist, Eastland. And that takes us back to 1955.

The ONLY way this dynamic of a nominee residing to answer substantive questions will change is if senators use the refusal to answer questions to defeat the nominee. Especially, if it's senators from the party that controls the White House.

Right now, senators act outraged when a nominee they don't like won't answer questions, but turn a blind eye when nominees they do like do the same thing.

On the bright side, just because the job of judging should be apolitical, that doesn't mean the job of selecting judges should be. Unlike Lena, I don't think there is anything wrong with litmus tests and surely they are used. It's ok to nominate only people who will say “i think Roe was rightly/wrongly decided.” It's the nature of having elected officials in charge of judicial selection that they will use litmus treats. What's wrong with the system is that the president uses litmus tests and then the rest of the process occurs as if litmus tests weren't used and would be wrong if they were used.

Housekeeping

Tim's Real time follow up: mutton busting is little kids riding sheep rodeo style… I now plan to ask my Oklahoma native partner if she has ever heard of such things and get my western New York self educated.

We will only do another pod this week if something unexpected happens - which, by definition, we don’t expect

We’ll be back for sure next week with a hearing summary and thoughts on the timeline going forward. McConnell indicates he intends to get this voted on before the April recess.

]]>The Senate Judiciary Committee grilled Judge Gorsuch for nearly 10 hours today. What was the biggest fish he ever caught? Do he and his family ski? Oh and while we have him under oath for a lifetime appointment to the highest court in the land, what does he think of Chevron? The ragtag gang of the usual suspects tackle the big questions from the hearings!

Gorsuch welcomes himself and his family (awkward hug w/wife), introduces clerks, assistant, others

Grassley Opening:

lays ground rules: Day 1 is opening statements day, Day 2 is round I questions and Senators get 30 min each, Day 3 is round II questions, maybe some witnesses, Day 4 is outside witness day; and as we know.

Vote 4/3

Opens w/Scalia quote (gov’t is one where we have a rule of law, not of men)

Tries this magic trick where he talks about coequal branches of gov’t, importance of needing a check on the executive and preservation of constitutional order; mentions tyrannical kings and the separation of powers

Feinstein: starts with Roe b/c picks up on precedent line Grassley ended on; then went into Gorsuch’s time at DOJ and involvement in torture; Gorsuch: avoided, said d/n know the emails she was talking about

Hatch: hate Chevron so loves Gorsuch; mentioned bipart support

Leahy: starts with Garland and asks if he was treated fairly. Gorsuch begins his frequent refrain that he can’t comment on politics; goes into money in politics; time at DOJ

Graham: pats himself on back mostly

Durbin: mentioned complicity, Gorsuch’s mentor Finnis

Cornyn: talked a lot about law school duration; civic engagement; originalism

Whitehouse: money in politics, dark money; anschultz

Lee: one of the lawyers “in teh well” in front of Gorsuch

Klobuchar: kept talking about not being in teh comfort of a coccoon; talks about cameras in the courtroom; disclosures; independence;

1- Modern Judiciary Committee hearings for SCOTUS noms aren’t worthless, but they’re close. The opacity of the nominees in answering questions is a disservice to our collective ability to assess them.

2 - Gorsuch was very well prepared. Franken and Klobuchar had him closest to being on the ropes, but he reverted to well-rehearsed lines to wriggle out.

3 - The media will be coronating him if they haven’t already started, largely because of #2.

4 - A rare third amendment reference! It’s like a rare baseball card. Also: Griswold! And a weird dodge around support for the holding?

5 - Speaking of sports. Sen. Sasse’s horrible sports analogy needs to be mocked. Dems asking questions on past cases is like asking a ref to call a game for one team before the game. HELL NO. It’s like asking the ref, “how do you define travelling” or “what’s your strike zone.” I am offended as a sports fan and SCOTUS nerd.

6 - I have no proof, but I think everyone turned Ted Cruz off. It’s like Twitter went on slo mo when he was on.

7 - Speaking of constitutions, I have a weak one compared to everyone on screen. I had a live stream on in the background all day, could come and go when I wanted and I feel like I climbed Everest.

9 - Best R: Graham. No competition, unless you like stories about skiing or fishing, which frankly felt like time wasters. I’ll stipulate to the judge’s humanity and interest in things humans do.

10 - “tough case” means controversial case where I took a super “movement” stand, but want to make it seem like I was on the line.

ADAM GIVES HIS THOUGHTS

Point zero: The question of whether Gorsuch should be on the Supreme Court is truly important, and it is a shame this is the process we are using. Gorsuch styles himself an originalist. The justice who most adheres to originalism when it doesn’t strongly conflict with his own policy views is Justice Thomas. And he came out with an opinion today that is impeccable from an originalist perspective, but may be the only opinion I’ve seen that would violate the dictum (stated first either by Abe Lincoln or the very interesting Justice Robert Jackson) that the Constitution is not a suicide pact. Thomas argued that the Constitution, which requires all “principal officers” of the United States to be appointed with advice and consent of the Senate, bans the president from designating acting officers for the key positions. Therefore, if the Secretary of Defense dies, there can be NO ONE to act as Secretary of Defense until the Senate confirms a new secretary, which in this era of nukes, other WMD, cyberterrorism, and 9/11 would truly make the Constitution a suicide pact. https://www.supremecourt.gov/opinions/16pdf/14-9496_8njq.pdf Strict originalism is a very dangerous way to interpret the Constitution that conservatives came up with to attack school desegregation and reproductive freedom (no matter how many liberal legal intellectuals like Akhil Amar have taken up the originalist mantle).

1 Progressives have not had a strong chairman or ranking member for a Supreme Court hearing for nearly the entire period in which the Committee has held such hearings. They've either been in over their heads, Feinstein, terrible rhetorically, Pat Leahy, willing to abandon progressives when he was most needed, Biden, a pro-segregationist, Eastland. And that takes us back to 1955.

The ONLY way this dynamic of a nominee residing to answer substantive questions will change is if senators use the refusal to answer questions to defeat the nominee. Especially, if it's senators from the party that controls the White House.

Right now, senators act outraged when a nominee they don't like won't answer questions, but turn a blind eye when nominees they do like do the same thing.

On the bright side, just because the job of judging should be apolitical, that doesn't mean the job of selecting judges should be. Unlike Lena, I don't think there is anything wrong with litmus tests and surely they are used. It's ok to nominate only people who will say “i think Roe was rightly/wrongly decided.” It's the nature of having elected officials in charge of judicial selection that they will use litmus treats. What's wrong with the system is that the president uses litmus tests and then the rest of the process occurs as if litmus tests weren't used and would be wrong if they were used.

Housekeeping

Tim's Real time follow up: mutton busting is little kids riding sheep rodeo style… I now plan to ask my Oklahoma native partner if she has ever heard of such things and get my western New York self educated.

We will only do another pod this week if something unexpected happens - which, by definition, we don’t expect

We’ll be back for sure next week with a hearing summary and thoughts on the timeline going forward. McConnell indicates he intends to get this voted on before the April recess.

]]>01:13:56yesAdvice & Consent 27: Judiciary Committee Hearing PreviewThu, 16 Mar 2017 03:40:25 +0000The Senate Judiciary Committee is scheduled to question Judge Gorsuch next week. What's the process look like and is there a likelihood of high drama on the Hill? The ragtag gang of the usual suspects previews the hearings!

(Still) not much news, but it’s warming up

Gorsuch continues to meet with Senators and is undoubtedly in full “murder board” prep.

Hey some other people think there’s an argument to postpone the Gorsuch process because of lingering Russia allegations against the administration. (Slate|Daily Kos)

New York Times reportsconnections between Gorsuch and “secretive billionaire” (oooh) Philip Anschutz, including the Colorado media mogul, Federalist Society backer and random sports team owner lobbying for Gorsuch’s 10th Circuit seat, among other things.

People impactedby Judge Gorsuch’s decisions came to D.C. today (3/15) for a press conference. Attending were 1)Alphonse Maddin, who was the trucker in the previously discussed who had been fired from his job at TransAm Trucking in 2009 when he nearly froze, 2) Patricia Caplinger, who sued Medtronic, when a medical device called Infuse was implanted in her in a way that was not approved by the FDA in 2015, and 3) Katherine Hwang whose mother, Grace, was fired from her teaching position at Kansas State after requesting accommodations after returning to work from leave for cancer treatment.The Hwang family also wrote an op-ed that was published in theSan Francisco Chronicle.

Followup from last pod

You may recall us highlighting the UPS gender discrimination case where Judge Gorsuch dissented, suggesting the lack of universal gender discrimination in the office was a reason the plaintiff shouldn’t get to a jury. The Tenth Circuit rejected that, following the settled concept that just because not everyone in a group is discriminated against doesn’t provide proof there isn’t discrimination going on against some of them. Tonight as we record, a federal district court in Hawaii used very similar logic to reject an argument of the Trump administration that the Muslim ban can’t be a Muslim ban because it doesn’t apply to all Muslim majority countries. Just a reminder… Judge Gorsuch was on the wrong end of this argument, as was the Trump administration.

Judiciary Committee Hearing Preview

Overview of the Process

What “always” happens/what we should definitely expect

(i.e. softballs from GOP and hardballs from Dems)

What are things that would make this hearing go differently?

(a few ideas)

The Trump factor - attempts to secure a promise of independence (probability: high)

Judge Gorsuch Borks himself (probability: exceedingly low)

The Garland factor - attempts to say “you’re potentially SCOTUS worthy, but we won’t consider you until Garland gets a hearing” (probability: possible mention, but unlikely to go this far)

The snooze factor - OMG How Do You Dissect Chevron, Class Actions, Arbitrations and Not Make People Sleepy factor - attempts to really get at the heart of Gorsuch’s troubling record on topics that make it hard for people to bring cases to court and that potentially dismantle administrative agency authority (probability: moderate)

The Russia factor - calls to scuttle all lifetime appointments until Russia allegations are resolved (probability: unclear but low)

The Other News factor - there are so many things happening, so will this receive the coverage such an event deserves? (probability: high)

Housekeeping

Look for a show Tuesday night after the first round of questions… then another show as appropriate, but certainly a hearing wrap up the week after.

]]>The Senate Judiciary Committee is scheduled to question Judge Gorsuch next week. What's the process look like and is there a likelihood of high drama on the Hill? The ragtag gang of the usual suspects previews the hearings!

Gorsuch continues to meet with Senators and is undoubtedly in full “murder board” prep.

Hey some other people think there’s an argument to postpone the Gorsuch process because of lingering Russia allegations against the administration. (Slate | Daily Kos)

New York Times reports connections between Gorsuch and “secretive billionaire” (oooh) Philip Anschutz, including the Colorado media mogul, Federalist Society backer and random sports team owner lobbying for Gorsuch’s 10th Circuit seat, among other things.

People impacted by Judge Gorsuch’s decisions came to D.C. today (3/15) for a press conference. Attending were 1) Alphonse Maddin, who was the trucker in the previously discussed who had been fired from his job at TransAm Trucking in 2009 when he nearly froze, 2) Patricia Caplinger, who sued Medtronic, when a medical device called Infuse was implanted in her in a way that was not approved by the FDA in 2015, and 3) Katherine Hwang whose mother, Grace, was fired from her teaching position at Kansas State after requesting accommodations after returning to work from leave for cancer treatment. The Hwang family also wrote an op-ed that was published in the San Francisco Chronicle.

You may recall us highlighting the UPS gender discrimination case where Judge Gorsuch dissented, suggesting the lack of universal gender discrimination in the office was a reason the plaintiff shouldn’t get to a jury. The Tenth Circuit rejected that, following the settled concept that just because not everyone in a group is discriminated against doesn’t provide proof there isn’t discrimination going on against some of them. Tonight as we record, a federal district court in Hawaii used very similar logic to reject an argument of the Trump administration that the Muslim ban can’t be a Muslim ban because it doesn’t apply to all Muslim majority countries. Just a reminder… Judge Gorsuch was on the wrong end of this argument, as was the Trump administration.

Judiciary Committee Hearing Preview

Overview of the Process

What “always” happens/what we should definitely expect

(i.e. softballs from GOP and hardballs from Dems)

What are things that would make this hearing go differently?

(a few ideas)

The Trump factor - attempts to secure a promise of independence (probability: high)

Judge Gorsuch Borks himself (probability: exceedingly low)

The Garland factor - attempts to say “you’re potentially SCOTUS worthy, but we won’t consider you until Garland gets a hearing” (probability: possible mention, but unlikely to go this far)

The snooze factor - OMG How Do You Dissect Chevron, Class Actions, Arbitrations and Not Make People Sleepy factor - attempts to really get at the heart of Gorsuch’s troubling record on topics that make it hard for people to bring cases to court and that potentially dismantle administrative agency authority (probability: moderate)

The Russia factor - calls to scuttle all lifetime appointments until Russia allegations are resolved (probability: unclear but low)

The Other News factor - there are so many things happening, so will this receive the coverage such an event deserves? (probability: high)

- This ep we take a closer look at Judge Gorsuch on social issues, privacy and how it relates to larger notions of substantive due process.

Lena

Abortion

Can we believe Trump this time? Trump’s litmus test - overturn Roe

Might not have ruled on abortion, but certainly has feelings he writes about in his spare time. (Adam will discuss more) Still has feelings he writes about while he’s on the bench, even though question of abortion he needed to answer.

Herbert, Republican Governor of Utah, ordered the state to stop federal funding ($272k) to PP Assoc. Of Utah.

10th Cir. granted a preliminary injunction to PP, saying PP Assoc. Of Utah was operating lawfully (in response to those fraudulent tapes) and the Governor’s personal objection to abortion was the motivation for blocking federal funds, and the Governor was violating the constitutional rights of PP Assoc. Of Utah by refusing federal funding

Neither PP nor Utah sought en banc review of the panel decision, BUT Judge Gorsuch dissented and would have granted en banc review and would have let the Governor defund PP

Judge Briscoe wrote separately (from the majority opinion) noting how extreme Judge Gorsuch’s position was - saying it was “unusual” “extraordinary” for him to do this sua sponte. She also went on to say that Gorsuch “mischaracterized this litigation and the panel decision at several turns.”

Okay, fine. But what about contraception? Ah, that religious liberty gets some respect….

Bonus if you’re a big ol corporation. Not so good if you’re their minimum wage workers.

Hobby Lobby, a closely-held corporation, thought that as part of their employer-sponsored health insurance plans they shouldn’t have to offer contraception because it conflicted with its religious beliefs.

Judge Gorsuch was part of a majority that said the Dept. of Health & Human Services couldn’t require such coverage. Saying corporations are people exercising religion for purpose of the Religious Freedom Restoration Act. This was upheld 5-4 in the Supreme Court.

But Gorsuch wrote a cute concurrence note to declare how much further he would go then the already conservative ruling in the 10th Circuit - something the Supreme Court didn’t even do in its decision. He said that not just corporations, but individual owners, could challenge the contraceptive mandate. Saying that he felt peoples religions trump individual rights and health care for women.

“All of us face the problem of complicity. All of us must answer for ourselves whether and

to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”

Cool. You can have your religious liberty, but let’s not make anyone have to do any paperwork so someone can get their medical care.

The Little Sisters said that it would be too burdensome for them to opt out of providing birth control coverage by signing a form that would then trigger other provision for contraceptive coverage through their insurance provider.

The 10th Circuit said the opt out accomodate was enough.

Judge Gorsuch joined a dissent from denial of en banc review where he said they should grant review to rehear the challenge because he believed that signing a form was a substantial burden to the Little Sisters’ free exercise religion.

Where does this go? Well, I raise these because in a weird concurrence and a dissent, Gorsuch chose to talk about this even though he didn’t have to. When one gets on the Supreme Court, they become more themselves. I believe Justices can differ from their decisions as judges, but these examples make me quite certain we can believe Trump.

Adam

First, Gorsuch is clearly a philosopher. The basic rule is that people ideologically opposed to the president are suspicious of philosopher-nominees. Democrats who embraced natural law ideas during the 1960s when the Court in Tim’s favorite case,Griswold, cited the Ninth Amendment as one of the possible sources of a constitutional right to privacy. But after 10 straight GOP nominees, Democrats were very scared of Clarence Thomas’ writing about natural law and natural rights as important reference points when interpreting the Constitution. As Lena can tell you, then-Chairman Biden spent much of his first round of questioning trying to pin down Thomas on how he would use natural law to interpret the Constitution. And this makes sense. Natural law and natural rights are powerful theories. They can lead to ideas such as a constitutional amendment is unconstitutional if it violates pre-existing natural law/rights, and if your ideological opponent is using natural law, they can do a lot of damage to the Constitution that you believe in.

So, here we have Gorsuch, a Rhodes Scholar, who wrote a whole book on the Constitution and assisted suicide and euthanasia. And his view, based on both law and philosophical ideas about the meaning of life, is that there is no constitutional right to assisted suicide. That, by itself, is not the most controversial statement in the world. The Supreme Court has held the same thing, and there wasn’t a big fight about it.

But what does it mean that he’s written such a book? One, that he cares deeply about issues of what the Constitution says about life. Two, that his views aren’t based simply on precedent, on originalism, or other things judges base their decisions on. Their based on philosophical views on life. Not only that, but strangely, he said that the person who wants to die isn’t the only person’s rights at stake (such as a person who doesn’t really want to die but is pressured by family members). The two-persons are involved argument is usually made in the abortion context (when the other person people usually mention is the fetus).

Now Gorsuch expressly tries to separate what he writes in his book from what he thinks about abortion, saying, for instance, that sinceRoedecided the fetus does not have constitutional rights. But that’s pretty hard to understand. If you’re going to say that a hypothetical person who really doesn’t want to die but evades all the safeguards in a Death with Dignity Act in order to die because of family pressure has rights that have to be considered along with people who actually do want to die must be considered, are you really going to say that a pregnant woman’s views outweigh those of the fetus, the father of the fetus? What about the exact same situation? Where a pregnant woman or girl is being pressured by family to have an abortion but doesn’t want to? Shouldn’t that invalidate all abortion laws based on Gorsuch’s natural law/rights argument?

To cut to the legal realism argument, however, I think it’s pretty clear that Gorsuch wrote this book to signal his views on abortion and other controversial social issues while having plausible deniability should he be nominated for the Court.

Carole Strickland, a salesperson for UPS sued for sex discrimination. She had a tough time of it. Shortly after a bad breakup, her bosses put her through the ringer… insisting (against her initial wishes) that she take medical leave. When she returned, they subjected her to micro-managy meetings no one else had to go through despite meeting or nearly meeting every sales quota thrown at her. At least one male member in the area ranked worse than her and never had to go through similar treatment. Co-workers said she was treated differently than the other men - for instance she couldn’t get important questions answered that would have helped her perform her job, while her male co-workers got their questions answered without a problem. The record showed pregnancy leave was frowned upon, and only reluctantly granted due to federal law. This was the environment that was the basis of the sex discrimination complaint. And the 10th Circuit majority said the record contained enough for the case to go to a jury.

But not Judge Gorsuch. In his dissent he wrote no reasonable jury would have found sex discrimination based on the record. This despite a whole host of things that suggested Ms. Strickland’s poor treatment could have been gender-based and that a jury should be the place to suss that out. Judge Gorsuch hung his hat on the testimony of the one other woman in the office who said she wasn’t treated differently than the plaintiff. But under settled 10th Circuit law that’s not enough… just because women aren’t universally discriminated against doesn’t mean one or more women aren’t.

It’s not that the record definitively demonstrated sex discrimination… but Judge Gorsuch’s colleagues held… and I would posit, most reasonable legal minds would concur... there was enough there for a jury to weigh the facts.

And that’s a problem. Judges are gatekeepers and have to do some degree of factual assessment before trial, but that bar is very low and favors plaintiffs in federal courts (yo, Professor Doernburg… I still got it!). A judge assumes everything on the record is true when making an assessment, and if there’s a question of fact... like there clearly was here… a judge passes it to the jury determine those facts.

It may be there was no sexual discrimination in this case... just awful management and bad behavior. But, Judge Gorsuch’s quick trigger in this instance dovetails with his attitude towards judicial relief generally… in other writings he wrings his hands over liberals misusing courts for relief, bemoaning the poor companies that have to defend lawsuits. This is an example of how he puts the thumb on the scale to deny a plaintiff a shot at discovery and a jury in a gender discrimination context.

Oh and for what it’s worth vis a vis last week… this also happens to side with a big shipping company over an individual… par for the course.

SCOTUS politics: a lifetime appointment in the context of the Russian allegations

Every day we seem to get closer to the most outlandish and absurd possibility that someone or some people in the Trump campaign colluded with Russian agents to impact the election. Given the lifetime appointment that is the SCOTUS seat, is it appropriate for Senate Democrats to filibuster this and future lifetime appointments (i.e. all judicial noms) until a complete independent investigation is done? Would framing a filibuster this way make it harder for Senate Republicans to go nuclear?

- This ep we take a closer look at Judge Gorsuch on social issues, privacy and how it relates to larger notions of substantive due process.

Lena

Abortion

Can we believe Trump this time? Trump’s litmus test - overturn Roe

Might not have ruled on abortion, but certainly has feelings he writes about in his spare time. (Adam will discuss more) Still has feelings he writes about while he’s on the bench, even though question of abortion he needed to answer.

Herbert, Republican Governor of Utah, ordered the state to stop federal funding ($272k) to PP Assoc. Of Utah.

10th Cir. granted a preliminary injunction to PP, saying PP Assoc. Of Utah was operating lawfully (in response to those fraudulent tapes) and the Governor’s personal objection to abortion was the motivation for blocking federal funds, and the Governor was violating the constitutional rights of PP Assoc. Of Utah by refusing federal funding

Neither PP nor Utah sought en banc review of the panel decision, BUT Judge Gorsuch dissented and would have granted en banc review and would have let the Governor defund PP

Judge Briscoe wrote separately (from the majority opinion) noting how extreme Judge Gorsuch’s position was - saying it was “unusual” “extraordinary” for him to do this sua sponte. She also went on to say that Gorsuch “mischaracterized this litigation and the panel decision at several turns.”

Okay, fine. But what about contraception? Ah, that religious liberty gets some respect….

Bonus if you’re a big ol corporation. Not so good if you’re their minimum wage workers.

Hobby Lobby, a closely-held corporation, thought that as part of their employer-sponsored health insurance plans they shouldn’t have to offer contraception because it conflicted with its religious beliefs.

Judge Gorsuch was part of a majority that said the Dept. of Health & Human Services couldn’t require such coverage. Saying corporations are people exercising religion for purpose of the Religious Freedom Restoration Act. This was upheld 5-4 in the Supreme Court.

But Gorsuch wrote a cute concurrence note to declare how much further he would go then the already conservative ruling in the 10th Circuit - something the Supreme Court didn’t even do in its decision. He said that not just corporations, but individual owners, could challenge the contraceptive mandate. Saying that he felt peoples religions trump individual rights and health care for women.

“All of us face the problem of complicity. All of us must answer for ourselves whether and

to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”

Cool. You can have your religious liberty, but let’s not make anyone have to do any paperwork so someone can get their medical care.

The Little Sisters said that it would be too burdensome for them to opt out of providing birth control coverage by signing a form that would then trigger other provision for contraceptive coverage through their insurance provider.

The 10th Circuit said the opt out accomodate was enough.

Judge Gorsuch joined a dissent from denial of en banc review where he said they should grant review to rehear the challenge because he believed that signing a form was a substantial burden to the Little Sisters’ free exercise religion.

Where does this go? Well, I raise these because in a weird concurrence and a dissent, Gorsuch chose to talk about this even though he didn’t have to. When one gets on the Supreme Court, they become more themselves. I believe Justices can differ from their decisions as judges, but these examples make me quite certain we can believe Trump.

Adam

First, Gorsuch is clearly a philosopher. The basic rule is that people ideologically opposed to the president are suspicious of philosopher-nominees. Democrats who embraced natural law ideas during the 1960s when the Court in Tim’s favorite case, Griswold, cited the Ninth Amendment as one of the possible sources of a constitutional right to privacy. But after 10 straight GOP nominees, Democrats were very scared of Clarence Thomas’ writing about natural law and natural rights as important reference points when interpreting the Constitution. As Lena can tell you, then-Chairman Biden spent much of his first round of questioning trying to pin down Thomas on how he would use natural law to interpret the Constitution. And this makes sense. Natural law and natural rights are powerful theories. They can lead to ideas such as a constitutional amendment is unconstitutional if it violates pre-existing natural law/rights, and if your ideological opponent is using natural law, they can do a lot of damage to the Constitution that you believe in.

So, here we have Gorsuch, a Rhodes Scholar, who wrote a whole book on the Constitution and assisted suicide and euthanasia. And his view, based on both law and philosophical ideas about the meaning of life, is that there is no constitutional right to assisted suicide. That, by itself, is not the most controversial statement in the world. The Supreme Court has held the same thing, and there wasn’t a big fight about it.

But what does it mean that he’s written such a book? One, that he cares deeply about issues of what the Constitution says about life. Two, that his views aren’t based simply on precedent, on originalism, or other things judges base their decisions on. Their based on philosophical views on life. Not only that, but strangely, he said that the person who wants to die isn’t the only person’s rights at stake (such as a person who doesn’t really want to die but is pressured by family members). The two-persons are involved argument is usually made in the abortion context (when the other person people usually mention is the fetus).

Now Gorsuch expressly tries to separate what he writes in his book from what he thinks about abortion, saying, for instance, that since Roe decided the fetus does not have constitutional rights. But that’s pretty hard to understand. If you’re going to say that a hypothetical person who really doesn’t want to die but evades all the safeguards in a Death with Dignity Act in order to die because of family pressure has rights that have to be considered along with people who actually do want to die must be considered, are you really going to say that a pregnant woman’s views outweigh those of the fetus, the father of the fetus? What about the exact same situation? Where a pregnant woman or girl is being pressured by family to have an abortion but doesn’t want to? Shouldn’t that invalidate all abortion laws based on Gorsuch’s natural law/rights argument?

To cut to the legal realism argument, however, I think it’s pretty clear that Gorsuch wrote this book to signal his views on abortion and other controversial social issues while having plausible deniability should he be nominated for the Court.

Carole Strickland, a salesperson for UPS sued for sex discrimination. She had a tough time of it. Shortly after a bad breakup, her bosses put her through the ringer… insisting (against her initial wishes) that she take medical leave. When she returned, they subjected her to micro-managy meetings no one else had to go through despite meeting or nearly meeting every sales quota thrown at her. At least one male member in the area ranked worse than her and never had to go through similar treatment. Co-workers said she was treated differently than the other men - for instance she couldn’t get important questions answered that would have helped her perform her job, while her male co-workers got their questions answered without a problem. The record showed pregnancy leave was frowned upon, and only reluctantly granted due to federal law. This was the environment that was the basis of the sex discrimination complaint. And the 10th Circuit majority said the record contained enough for the case to go to a jury.

But not Judge Gorsuch. In his dissent he wrote no reasonable jury would have found sex discrimination based on the record. This despite a whole host of things that suggested Ms. Strickland’s poor treatment could have been gender-based and that a jury should be the place to suss that out. Judge Gorsuch hung his hat on the testimony of the one other woman in the office who said she wasn’t treated differently than the plaintiff. But under settled 10th Circuit law that’s not enough… just because women aren’t universally discriminated against doesn’t mean one or more women aren’t.

It’s not that the record definitively demonstrated sex discrimination… but Judge Gorsuch’s colleagues held… and I would posit, most reasonable legal minds would concur... there was enough there for a jury to weigh the facts.

And that’s a problem. Judges are gatekeepers and have to do some degree of factual assessment before trial, but that bar is very low and favors plaintiffs in federal courts (yo, Professor Doernburg… I still got it!). A judge assumes everything on the record is true when making an assessment, and if there’s a question of fact... like there clearly was here… a judge passes it to the jury determine those facts.

It may be there was no sexual discrimination in this case... just awful management and bad behavior. But, Judge Gorsuch’s quick trigger in this instance dovetails with his attitude towards judicial relief generally… in other writings he wrings his hands over liberals misusing courts for relief, bemoaning the poor companies that have to defend lawsuits. This is an example of how he puts the thumb on the scale to deny a plaintiff a shot at discovery and a jury in a gender discrimination context.

Oh and for what it’s worth vis a vis last week… this also happens to side with a big shipping company over an individual… par for the course.

SCOTUS politics: a lifetime appointment in the context of the Russian allegations

Every day we seem to get closer to the most outlandish and absurd possibility that someone or some people in the Trump campaign colluded with Russian agents to impact the election. Given the lifetime appointment that is the SCOTUS seat, is it appropriate for Senate Democrats to filibuster this and future lifetime appointments (i.e. all judicial noms) until a complete independent investigation is done? Would framing a filibuster this way make it harder for Senate Republicans to go nuclear?

]]>01:00:43cleanAdvice & Consent 25: The QuestionnaireThu, 16 Feb 2017 04:58:52 +0000Judge Gorsuch's questionnaire answers for the Judiciary Committee brought Washington to a halt this week... oh wait, is there anything else going on that can supersede a Supreme Court nomination process for political coverage these days? Take a break from firings and international intrigue with a deep dive into the judge's record on siding with corporate interests with us too...

The Questionnaire

Lena:I’m a process person more than anything and so I jumped to the end and looked at Q26. They say “Describe your experience in the entire judicial selection process…” I outlined last week what had been written about his meetings which is essentially regurgitated. He highlights conversations with:

“and may have had other communications with the individuals listed above, or groups of them”

Adam: Judge Gorsuch has a very Republican record. This is not always the case. It was the case with Kagan (a Democratic record) and Alito (a Republican record) but it is not inevitable. Sotomayor was appointed to the bench by George H.W. Bush. Roberts had environmental cases in his pro bono record, while Gorsuch apparently did no pro bono in 16 years before becoming a judge. That’s a problem. It’s also a problem that Gorsuch will follow the precedent of every nominee since Bork and not talk about controversial issues that might appear before him unless he’s previously written on the topic.

Tim: I think the questionnaire needs to ask questions a little more specifically regarding the “litmus test” question (26c). It defies credulity that Judge Gorsuch wasn’t vetted directly on a variety of issues, most notablyRoe. If he hasn’t been vetted, then Trump broke a major campaign promise. So let’s assume he was... the question has a hole you can drive a truck through: [insert question here]

It would be painfully easy to ask a question by a third party that was along the lines of “Tell me what you think ofRoe.” not “Would you vote to overturnRoe?” and still be able to answer the last question of the questionnaire truthfully. I mean, this is basic lawyering stuff.

Tim: Judge Gorsuch is another member of the “class actions are the bane of democracy!” crowd. The argument tends to be, “they’re really big and they’re too easy to win which is bad!” It’s sort of the powered up version of the arguments you hear on tort reform… these are frivolous cases and it hurts the economy… yadda yadda yadda… hug a small business owner and call it a day.

In Gorsuch’s case, he pulls this argument in the context of class actions over securities fraud. He goes so far to suggest innocent securities companies all over the country are being sued in class actions, and frivolously at that. Because they’re all frivolous. Ok. Sure.

It’s all couched in an attempt (that failed by the way) to require class action plaintiffs to prove causation between the securities fraud and their loss just to get the class certified. Mind you… these plaintiffs still need to prove it down the line to win… but this is a cynical method to stop class actions from happening before they start. The bottom line, he was wrong on this, and it shows his stripes.

Best read:No Loss, No Gain, Legal Times, Jan. 31, 2005. (“free ride[s] to fast riches.” and that the cases are “frivolous claims” that are “affecting virtually every public corporation in America at one time or another and costing business billions of dollars in settlements every year.”)

Adam: 10,000 foot view. How much difference will Gorsuch really make on the Court in terms of its corporate record? How many nominees have a demonstrated commitment to justice for anyone besides corporations/the big guy. We have a bunch of Harvard/Yale Law School justices who were summer associates at large law firms and then either went directly into government or worked for large law firms first. They often rule in favor of corporate interests by 9-0 even when lower courts came out differently from then. The exception is Ginsburg, but on non-civil rights issues, she has shown remarkably little solicitude for litigants taking on the powerful. If you learned about personal jurisdiction more than 5 years ago, everything you know about general jurisdiction is now wrong because Ginsburg was horrified at the idea that a corporation could be haled into court somewhere where they’re not doing business. She’s repeatedly ruled to send cases to pro-corporate arbitration.

I’ve been through the justices, and the last Supreme Court justice who actually had a demonstrated record of fighting for the little person was Justice Goldberg, who was general counsel for labor unions, and served for 3 years on the Supreme Court in the 1960s before LBJ tricked him off the Court so he could appoint his pal Abe Fortas in his stead.

]]>Judge Gorsuch's questionnaire answers for the Judiciary Committee brought Washington to a halt this week... oh wait, is there anything else going on that can supersede a Supreme Court nomination process for political coverage these days? Take a break from firings and international intrigue with a deep dive into the judge's record on siding with corporate interests with us too...

Lena: I’m a process person more than anything and so I jumped to the end and looked at Q26. They say “Describe your experience in the entire judicial selection process…” I outlined last week what had been written about his meetings which is essentially regurgitated. He highlights conversations with:

“and may have had other communications with the individuals listed above, or groups of them”

Adam: Judge Gorsuch has a very Republican record. This is not always the case. It was the case with Kagan (a Democratic record) and Alito (a Republican record) but it is not inevitable. Sotomayor was appointed to the bench by George H.W. Bush. Roberts had environmental cases in his pro bono record, while Gorsuch apparently did no pro bono in 16 years before becoming a judge. That’s a problem. It’s also a problem that Gorsuch will follow the precedent of every nominee since Bork and not talk about controversial issues that might appear before him unless he’s previously written on the topic.

Tim: I think the questionnaire needs to ask questions a little more specifically regarding the “litmus test” question (26c). It defies credulity that Judge Gorsuch wasn’t vetted directly on a variety of issues, most notably Roe. If he hasn’t been vetted, then Trump broke a major campaign promise. So let’s assume he was... the question has a hole you can drive a truck through: [insert question here]

It would be painfully easy to ask a question by a third party that was along the lines of “Tell me what you think of Roe.” not “Would you vote to overturn Roe?” and still be able to answer the last question of the questionnaire truthfully. I mean, this is basic lawyering stuff.

Tim: Judge Gorsuch is another member of the “class actions are the bane of democracy!” crowd. The argument tends to be, “they’re really big and they’re too easy to win which is bad!” It’s sort of the powered up version of the arguments you hear on tort reform… these are frivolous cases and it hurts the economy… yadda yadda yadda… hug a small business owner and call it a day.

In Gorsuch’s case, he pulls this argument in the context of class actions over securities fraud. He goes so far to suggest innocent securities companies all over the country are being sued in class actions, and frivolously at that. Because they’re all frivolous. Ok. Sure.

It’s all couched in an attempt (that failed by the way) to require class action plaintiffs to prove causation between the securities fraud and their loss just to get the class certified. Mind you… these plaintiffs still need to prove it down the line to win… but this is a cynical method to stop class actions from happening before they start. The bottom line, he was wrong on this, and it shows his stripes.

Best read: No Loss, No Gain, Legal Times, Jan. 31, 2005. (“free ride[s] to fast riches.” and that the cases are “frivolous claims” that are “affecting virtually every public corporation in America at one time or another and costing business billions of dollars in settlements every year.”)

Adam: 10,000 foot view. How much difference will Gorsuch really make on the Court in terms of its corporate record? How many nominees have a demonstrated commitment to justice for anyone besides corporations/the big guy. We have a bunch of Harvard/Yale Law School justices who were summer associates at large law firms and then either went directly into government or worked for large law firms first. They often rule in favor of corporate interests by 9-0 even when lower courts came out differently from then. The exception is Ginsburg, but on non-civil rights issues, she has shown remarkably little solicitude for litigants taking on the powerful. If you learned about personal jurisdiction more than 5 years ago, everything you know about general jurisdiction is now wrong because Ginsburg was horrified at the idea that a corporation could be haled into court somewhere where they’re not doing business. She’s repeatedly ruled to send cases to pro-corporate arbitration.

I’ve been through the justices, and the last Supreme Court justice who actually had a demonstrated record of fighting for the little person was Justice Goldberg, who was general counsel for labor unions, and served for 3 years on the Supreme Court in the 1960s before LBJ tricked him off the Court so he could appoint his pal Abe Fortas in his stead.

]]>01:02:04cleanAdvice & Consent 24: So-called judges and framing the Neil Gorsuch debateWed, 08 Feb 2017 03:50:02 +0000Stop us if you've heard this one before... a President walks in a room and criticizes a federal judge, suggesting that said judge is possibly not legitimate. Sorry, we'll have to be more specific? President Trump is at it again with his "so-called judges" remark as his travel ban EO works its way through the lower federal courts ... perhaps on its way to SCOTUS? Also, more on framing the debate of SCOTUS nominee Gorsuch as he begins his Senate visits.

So-called judges and framing the Neil Gorsuch debate

Lena:Words matter. Full stop. I’ve heard it argued that it’s just “his way of talking” or “his vernacular” to say things like “so-called judges.” I don’t buy it. The man supposedly has “the best words” and so I’d like for him to try to use some of them. Here’s the harm I see:

Tim:It’s more than ok for a President to disagree with a court ruling against him or her… it’s been done probably by every President before and is normal. What’s not is the denigration of the institutions and question the legitimacy of the judge. That’s what’s dangerous.

Adam:To situate this, we’ve dealt with the concept of legal realism for a century, the idea that judges aren’t Platonic guardians who divine the law and then pronounce it. But legal realists don’t say that judges are nothing but politicians in robes. Trump seems to argue that there is no reason for a judge to rule against him unless the judge is illegitimate (biased because of Mexican heritage or an illegitimate “so-called judge.”) This attack on judicial independence is important and should change the way the Senate considers nominees from a president who doesn’t buy into judicial independence. I wrote a blog post explaining why here.

Lena:This began last summer, Trump campaigned with a list of 21 nominees. Campaigned on his litmus tests (Roe & NRA’s 2nd Amendment) Gorsuch was in the second list released which was compiled by Federalist Society and the Heritage Foundation. Then compiled by Don McGahn, the now-White House Counsel, then-Trump election lawyer.

What does Trump think he’s getting out of this - litmus test, loyalty, EOs

Why is Pence so interested/involved. Trump declared evangelicals are going to love his pick, he’s the most conservative. What is that getting to?

What about his writings did they love?

How is Gorsuch going to show a strong check/independence when the President is undermining the entire judiciary

Adam: we're really at a constitutional crisis here involving both a president who seems to have no commitment to rule of law and the Senate's decision to block the nominee of a president who received a majority of the overall vote and a solid electoral college victory and is now intent on pushing through a nominee who lost the popular vote.

This is perfectly in line with the framers’ intent. They set up a system in which a president elected by an electoral college picked by state legislatures nominates a justice and a Senate that is not democratically apportioned and also was originally picked by state legislatures confirmed or rejected the choice. Then the appointee served for life. Judicial selection was as insulated from the people as could be in a nation that embraced popular sovereignty.

But in a more democratic age, following Andrew Jackson, the progressives, and the 15th, 19th, and 26th Amendment, is it still legitimate to have a nominee so unconnected with the people's will?

]]>Stop us if you've heard this one before... a President walks in a room and criticizes a federal judge, suggesting that said judge is possibly not legitimate. Sorry, we'll have to be more specific? President Trump is at it again with his "so-called judges" remark as his travel ban EO works its way through the lower federal courts ... perhaps on its way to SCOTUS? Also, more on framing the debate of SCOTUS nominee Gorsuch as he begins his Senate visits.

Lena: Words matter. Full stop. I’ve heard it argued that it’s just “his way of talking” or “his vernacular” to say things like “so-called judges.” I don’t buy it. The man supposedly has “the best words” and so I’d like for him to try to use some of them. Here’s the harm I see:

Tim: It’s more than ok for a President to disagree with a court ruling against him or her… it’s been done probably by every President before and is normal. What’s not is the denigration of the institutions and question the legitimacy of the judge. That’s what’s dangerous.

Adam: To situate this, we’ve dealt with the concept of legal realism for a century, the idea that judges aren’t Platonic guardians who divine the law and then pronounce it. But legal realists don’t say that judges are nothing but politicians in robes. Trump seems to argue that there is no reason for a judge to rule against him unless the judge is illegitimate (biased because of Mexican heritage or an illegitimate “so-called judge.”) This attack on judicial independence is important and should change the way the Senate considers nominees from a president who doesn’t buy into judicial independence. I wrote a blog post explaining why here.

Lena: This began last summer, Trump campaigned with a list of 21 nominees. Campaigned on his litmus tests (Roe & NRA’s 2nd Amendment) Gorsuch was in the second list released which was compiled by Federalist Society and the Heritage Foundation. Then compiled by Don McGahn, the now-White House Counsel, then-Trump election lawyer.

What does Trump think he’s getting out of this - litmus test, loyalty, EOs

Why is Pence so interested/involved. Trump declared evangelicals are going to love his pick, he’s the most conservative. What is that getting to?

What about his writings did they love?

How is Gorsuch going to show a strong check/independence when the President is undermining the entire judiciary

Adam: we're really at a constitutional crisis here involving both a president who seems to have no commitment to rule of law and the Senate's decision to block the nominee of a president who received a majority of the overall vote and a solid electoral college victory and is now intent on pushing through a nominee who lost the popular vote.

This is perfectly in line with the framers’ intent. They set up a system in which a president elected by an electoral college picked by state legislatures nominates a justice and a Senate that is not democratically apportioned and also was originally picked by state legislatures confirmed or rejected the choice. Then the appointee served for life. Judicial selection was as insulated from the people as could be in a nation that embraced popular sovereignty.

But in a more democratic age, following Andrew Jackson, the progressives, and the 15th, 19th, and 26th Amendment, is it still legitimate to have a nominee so unconnected with the people's will?

]]>43:49cleanAdvice & Consent 23: Neil Gorsuch, Nuclear NomineeFri, 03 Feb 2017 04:36:59 +0000Judge Neil Gorsuch is the SCOTUS nominee, and early indication suggests this will be a contentious process. The ragtag gang of the usual suspects give their thoughts on the last 48 hours and where this is heading. Hint: nuclear.

Neil Gorsuch, Nuclear Nominee: the record

The Reaction

DEMS

Trump *barely* won the office and actually lost the popular vote, so a consensus mainstream SCOTUS nom is in order. And we measure mainstream with, say… hmmm… lets put a round number on it...60votes. Oh and also if you (meaning the GOP) think we need a deep reason, how about “it was you that truly fucked with the norms,” and (with apologies toGood Will Hunting).... “Do you like apples? HOW DO YOU LIKE THEM APPLES!”

Process update

Adam:My thoughts on the endgame are spelled out in my Facebook post. Ds will inevitably filibuster. There are enough with eyes on 2020 (Booker, esp., Warren, but maybe dark horses like Gillibrand) and they will filibuster and force a cloture vote. It will be very hard to find 8 Ds to break ranks as shown by your whip count, especially given base anger over Garland/Citizens United/Bush v. Gore. I think even Ds up for reelection will have to worry about being primaried if they break.

Rs can’t lose more than 2 votes and they aren’t assured of it. But there’s NO chance that Rs will let Ds filibuster all nominees for 4 years. What would have to happen is a re-born Gang of 14 that would broker a deal of someone less conservative (or less clearly conservative) than Gorsuch but much more than Garland. Frankly, this would have been the likely outcome of a Pryor nomination or a nomination in the context of the Texas abortion law being struck down, but it’s less sure without that.

QUESTIONS: Do pro-choice Collins and Murkowski really want to put another firm anti-Roe voice on the Court? Where would a third possible break come from? (Remaining Gang of 14’ers, McCain, who has been adamant about the filibuster, Graham? Heller? Flake?) Would they settle for someone with less of a clear record? Since we were basically stumped on a previous episode to find a nominee who a compromise candidate might be, can the Rs pick one? The left pushed for Mukasey in 2005, but after his term as AG, it would be hard to imagine that happening again (plus he’s 75 now, and he believes water-boarding isn’t torture, and he enthusiastically supported Jeff Sessions for AG). Here’s a possibility: http://www.acslaw.org/acsblog/draft-prado-effort-launched

Lena:This any nominee should be able to meet the 60 vote threshold - an indication the person receives bipartisan support which is incredibly important now.

Layers to consider:

Support/Oppose Nominee

Ds Positions:

Give Garland vote 1st

No because this is a stolen seat

Review the record, give full hearing and up-or-down vote

Rs Positions:

Assuming lockstep but I think the pressure to stand up against extremeism and Trump will grow over the next few months

Dan: Whatever happens, the Democrats at the very least have to fight like they’ve never fought before. And, assuming there are hearings, they need to cross examine Gorsuch in a far more expert manner than they’ve shown in the past (with a few exceptions). Senate Judiciary needs to bring in the heaviest hitters on the left, like Stanford’s Pam Karlan (who should be on the Court, herself) for both substantive and stylistic training sessions, to make these hearings and this process a politically powerful teaching moment.

Tim: Agree with everyone… hard to see this not going nuclear following very vigorous hearings and floor debate. There’s no incentive for the Ds to hold their powder and none for Rs to hold off.

We’re in a new SCOTUS paradigm.With the “success” of the Garland block, and assuming the political environment remains this stratified, we should only expect any POTUS to get a SCOTUS nom through if the POTUS and Senate majority are the same party. This could lead to a SCOTUS with smaller numbers for long stretches of divided government.

Lena:

What Usually Happens & When for Supreme Court Nominees?

Based on Supreme Court nominations since 1975.

]]>Judge Neil Gorsuch is the SCOTUS nominee, and early indication suggests this will be a contentious process. The ragtag gang of the usual suspects give their thoughts on the last 48 hours and where this is heading. Hint: nuclear.

Trump *barely* won the office and actually lost the popular vote, so a consensus mainstream SCOTUS nom is in order. And we measure mainstream with, say… hmmm… lets put a round number on it... 60 votes. Oh and also if you (meaning the GOP) think we need a deep reason, how about “it was you that truly fucked with the norms,” and (with apologies to Good Will Hunting).... “Do you like apples? HOW DO YOU LIKE THEM APPLES!”

Adam: My thoughts on the endgame are spelled out in my Facebook post. Ds will inevitably filibuster. There are enough with eyes on 2020 (Booker, esp., Warren, but maybe dark horses like Gillibrand) and they will filibuster and force a cloture vote. It will be very hard to find 8 Ds to break ranks as shown by your whip count, especially given base anger over Garland/Citizens United/Bush v. Gore. I think even Ds up for reelection will have to worry about being primaried if they break.

Rs can’t lose more than 2 votes and they aren’t assured of it. But there’s NO chance that Rs will let Ds filibuster all nominees for 4 years. What would have to happen is a re-born Gang of 14 that would broker a deal of someone less conservative (or less clearly conservative) than Gorsuch but much more than Garland. Frankly, this would have been the likely outcome of a Pryor nomination or a nomination in the context of the Texas abortion law being struck down, but it’s less sure without that.

QUESTIONS: Do pro-choice Collins and Murkowski really want to put another firm anti-Roe voice on the Court? Where would a third possible break come from? (Remaining Gang of 14’ers, McCain, who has been adamant about the filibuster, Graham? Heller? Flake?) Would they settle for someone with less of a clear record? Since we were basically stumped on a previous episode to find a nominee who a compromise candidate might be, can the Rs pick one? The left pushed for Mukasey in 2005, but after his term as AG, it would be hard to imagine that happening again (plus he’s 75 now, and he believes water-boarding isn’t torture, and he enthusiastically supported Jeff Sessions for AG). Here’s a possibility: http://www.acslaw.org/acsblog/draft-prado-effort-launched

Lena: This any nominee should be able to meet the 60 vote threshold - an indication the person receives bipartisan support which is incredibly important now.

Layers to consider:

Support/Oppose Nominee

Ds Positions:

Give Garland vote 1st

No because this is a stolen seat

Review the record, give full hearing and up-or-down vote

Rs Positions:

Assuming lockstep but I think the pressure to stand up against extremeism and Trump will grow over the next few months

Dan: Whatever happens, the Democrats at the very least have to fight like they’ve never fought before. And, assuming there are hearings, they need to cross examine Gorsuch in a far more expert manner than they’ve shown in the past (with a few exceptions). Senate Judiciary needs to bring in the heaviest hitters on the left, like Stanford’s Pam Karlan (who should be on the Court, herself) for both substantive and stylistic training sessions, to make these hearings and this process a politically powerful teaching moment.

Tim: Agree with everyone… hard to see this not going nuclear following very vigorous hearings and floor debate. There’s no incentive for the Ds to hold their powder and none for Rs to hold off.

We’re in a new SCOTUS paradigm. With the “success” of the Garland block, and assuming the political environment remains this stratified, we should only expect any POTUS to get a SCOTUS nom through if the POTUS and Senate majority are the same party. This could lead to a SCOTUS with smaller numbers for long stretches of divided government.

Neil Gorsuch nominateed to SCOTUS

Neil Gorsuchis a judge on the Court of Appeals for the 10th Circuit, which sits in Denver. He was approved on a voice vote in 2006.

He is a graduate of Columbia, Harvard and Oxford, and clerked for Judge Sentelle on the DC Circuit and Supreme Court Justices White and Kennedy.

He’s best known for:

Being a conservative intellectual (wrote a book on conservative legal reasoning)

An expansive view on freedom of religion (Hobby Lobby)

A position of less deference to federal agencies (suggestingChevronshould be reconsidered)

Approving strip-searching of detainees arrested foranycrime.

Originalism - judges should strive "to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best." (Speech at Case Western)

He’s into the dormant commerce clause - more in that on Thursday

Opposition to right-to-die; almost certainly anti-choice on abortion

SIDEBAR… however, Andrew Schlafly—son of the late PhyllisSchlaflyand president of the Legal Center for the Defense of Life—indicated that Gorsuch "won't be pro-life on the bench ... because he doesn't invoke the term 'unborn child' in his decisions or public comments.”

Favors state rights over federal control

A reliable conservative not above a little liberal bashing:

Gorsuch has attacked “American liberals” for what he said was an over-reliance on constitutional litigation. He asserted that liberals’ “overweening addiction to the courtroom” negatively affects public policy by aggrandizing the courts and consequently dampening “social experimentation” by the legislative branches.

Trivia: son of the late Anne Gorsuch, administrator of EPA under Reagan. Not exactly beloved by the environmental community, and the first agency director to be found in contempt of Congress.

Initial thoughts?

Adam: What happens depends on whether Democrats see this as the Scalia seat or the Garland seat. There’s no reason to have a big fight over the Scalia seat. There’s a big reason to have a big fight over the Garland seat. We’re going to hear Garland’s name mentioned as much as Gorsuch’s over the next few months. Don’t think Democrats are going to be able to duck the fight even if they want to.

Tim: a lot to talk about. You’ll hear a lot aboutChevronandHobby Lobby. The whole thing may boil down to whether President Trump and - perhaps more importantly - Mitch McConnell are ready to burn the Senate to the ground over this seat. The vast majority of the Dems feel principled that the treatment Garland and Obama got was out of bounds, and won’t lift a proverbial finger to confirm someone in that slot.

Process for the next few weeks

Coming Thursday…

More on Judge Neil Gorsuch

More on scheduled hearings and early reactions to the nomination

The prospect of filibuster and the nuclear option

]]>Donald Trump has named Judge Neil Gorsuch for the SCOTUS vacancy. On this special edition, our initial impressions... Neil Gorsuch nominateed to SCOTUS

Neil Gorsuch is a judge on the Court of Appeals for the 10th Circuit, which sits in Denver. He was approved on a voice vote in 2006.

He is a graduate of Columbia, Harvard and Oxford, and clerked for Judge Sentelle on the DC Circuit and Supreme Court Justices White and Kennedy.

He’s best known for:

Being a conservative intellectual (wrote a book on conservative legal reasoning)

An expansive view on freedom of religion (Hobby Lobby)

A position of less deference to federal agencies (suggesting Chevron should be reconsidered)

Approving strip-searching of detainees arrested for any crime.

Originalism - judges should strive "to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best." (Speech at Case Western)

He’s into the dormant commerce clause - more in that on Thursday

Opposition to right-to-die; almost certainly anti-choice on abortion

SIDEBAR… however, Andrew Schlafly—son of the late Phyllis Schlafly and president of the Legal Center for the Defense of Life—indicated that Gorsuch "won't be pro-life on the bench ... because he doesn't invoke the term 'unborn child' in his decisions or public comments.”

Favors state rights over federal control

A reliable conservative not above a little liberal bashing:

Gorsuch has attacked “American liberals” for what he said was an over-reliance on constitutional litigation. He asserted that liberals’ “overweening addiction to the courtroom” negatively affects public policy by aggrandizing the courts and consequently dampening “social experimentation” by the legislative branches.

Trivia: son of the late Anne Gorsuch, administrator of EPA under Reagan. Not exactly beloved by the environmental community, and the first agency director to be found in contempt of Congress.

Initial thoughts?

Adam: What happens depends on whether Democrats see this as the Scalia seat or the Garland seat. There’s no reason to have a big fight over the Scalia seat. There’s a big reason to have a big fight over the Garland seat. We’re going to hear Garland’s name mentioned as much as Gorsuch’s over the next few months. Don’t think Democrats are going to be able to duck the fight even if they want to.

Tim: a lot to talk about. You’ll hear a lot about Chevron and Hobby Lobby. The whole thing may boil down to whether President Trump and - perhaps more importantly - Mitch McConnell are ready to burn the Senate to the ground over this seat. The vast majority of the Dems feel principled that the treatment Garland and Obama got was out of bounds, and won’t lift a proverbial finger to confirm someone in that slot.

The SCOTUS Shortlist

PEOTUS Trump inherits a SCOTUS vacancy (stolen, mind you… listen to our prior 20 episodes for more on that). There’s a relatively public shortlist. On this episode, we chat a little more in depth about the people on that list, what their ascendancy to the high court would mean and our best guess at whom the new President will nominate.

America’s Newest Favorite Gameshow: From Anonymity to Famous for DC!

Who’s it going to be? Someone from the list or a wild card?

Lena: All have been vetted by very conservative legal folks even though the most conservative of them still make some small groups of conservatives mad that they may not have twisted the law to always favor the outcome they seek. So, my criteria for guessing: 1) some sense of loyalty/flattery; 2) looks; 3) age. I’m still guessing Judge William Pryor. Judge Diane Sykes, my normal second guess, is demoted because she’s 58 years old. My new second guess is probably Judge Steven Colloton.

Adam: if he can get away with it he'll go off the board (to use a Jokers Wild term) and pick a Trump flunkie who will rule in his favor on his personal lawsuits. So, based on my sense of Trump's loyalty to the base of his party (taking into account his desire for reelection) and his loyalty to self, I say 55% chance of Pryor, based on his picking Sessions as AG, 5% one of these other people, 40% chance of an unknown Trump flunkie

Dan: Lena has sold me on Steven Colloton. Solid conservative, no massive red culture war red flags like Pryor, looks the part. Trump won’t want to waste political capital on the Supreme Court with a battle over Pryor.

Tim: Reports of William Pryor meeting with The Donald aside, a former colleague said it best before the holidays… if Don Willett gets a meeting with Trump, it’s all over. He’s the nominee. Check out his Twitter feed and you’ll immediately see why. He’s young, charismatic, fiercely conservative, and strikes me as packaged perfectly for this President-to-be. His marginally anti-Trump tweets will be easily brushed aside.

Wrapping up… Any last thoughts before we enter the Trump era?

Lena: Lower courts

Dan:Rev. Dr. William Barber - critical voice for the Trump era

Adam: SCOTUSBlog: Timeline to confirm Scalia’s successor. Very interesting. If confirmation happens on the Sotomayor/Kagan timeline, the nominee will get on the Court just in time for the last argument session of the 2016-17 term, meaning that the Court could rehear arguments in cases in which they are tied 4-4 and have a decision before they leave in June. That said, Democrats have some leverage since Republicans have to trigger the nuclear option to push a nominee through over a Democratic filibuster. Only 3 Ds remain on the Judiciary Committee from the last time the Senate considered a Republican nominee, Feinstein (ranking member), Leahy (ranking member last time), and Durbin (Minority Whip then and now). So, it will be a new experience for the Committee. Four Republicans remain from the Roberts/Alito hearings

Tim: We know the PEOTUS will likely make a nomination within the next two weeks, so our next show will come out shortly afterwards and focus on the nominee and the circus to be named later. Sen. Schumer has intimated that there may be some shenanigans.

PEOTUS Trump inherits a SCOTUS vacancy (stolen, mind you… listen to our prior 20 episodes for more on that). There’s a relatively public shortlist. On this episode, we chat a little more in depth about the people on that list, what their ascendancy to the high court would mean and our best guess at whom the new President will nominate.

Lena: All have been vetted by very conservative legal folks even though the most conservative of them still make some small groups of conservatives mad that they may not have twisted the law to always favor the outcome they seek. So, my criteria for guessing: 1) some sense of loyalty/flattery; 2) looks; 3) age. I’m still guessing Judge William Pryor. Judge Diane Sykes, my normal second guess, is demoted because she’s 58 years old. My new second guess is probably Judge Steven Colloton.

Adam: if he can get away with it he'll go off the board (to use a Jokers Wild term) and pick a Trump flunkie who will rule in his favor on his personal lawsuits. So, based on my sense of Trump's loyalty to the base of his party (taking into account his desire for reelection) and his loyalty to self, I say 55% chance of Pryor, based on his picking Sessions as AG, 5% one of these other people, 40% chance of an unknown Trump flunkie

Dan: Lena has sold me on Steven Colloton. Solid conservative, no massive red culture war red flags like Pryor, looks the part. Trump won’t want to waste political capital on the Supreme Court with a battle over Pryor.

Tim: Reports of William Pryor meeting with The Donald aside, a former colleague said it best before the holidays… if Don Willett gets a meeting with Trump, it’s all over. He’s the nominee. Check out his Twitter feed and you’ll immediately see why. He’s young, charismatic, fiercely conservative, and strikes me as packaged perfectly for this President-to-be. His marginally anti-Trump tweets will be easily brushed aside.

Wrapping up… Any last thoughts before we enter the Trump era?

Lena: Lower courts

Dan:Rev. Dr. William Barber - critical voice for the Trump era

Adam: SCOTUSBlog: Timeline to confirm Scalia’s successor. Very interesting. If confirmation happens on the Sotomayor/Kagan timeline, the nominee will get on the Court just in time for the last argument session of the 2016-17 term, meaning that the Court could rehear arguments in cases in which they are tied 4-4 and have a decision before they leave in June. That said, Democrats have some leverage since Republicans have to trigger the nuclear option to push a nominee through over a Democratic filibuster. Only 3 Ds remain on the Judiciary Committee from the last time the Senate considered a Republican nominee, Feinstein (ranking member), Leahy (ranking member last time), and Durbin (Minority Whip then and now). So, it will be a new experience for the Committee. Four Republicans remain from the Roberts/Alito hearings

Tim: We know the PEOTUS will likely make a nomination within the next two weeks, so our next show will come out shortly afterwards and focus on the nominee and the circus to be named later. Sen. Schumer has intimated that there may be some shenanigans.

]]>53:03cleanAdvice & Consent 20: January 3, 2017Fri, 30 Dec 2016 04:24:00 +0000The end of the year special… a viable, Constitutional path to confirming Merrick Garland on January 3, 2017. But is it practical? Or even a good idea?

Preamble: January 3, 2017

There are a lot (A LOT) of pie in the sky, save the country from itself, never going to work, clickbaity theories on things these days. Most of these are sheer hackery.

HOWEVER. One thing caught our attention as it had to do with the process of confirming (or not confirming) Merrick Garland, which is kind of what this show’s been about. We think it’s been dismissed by a lot of people and embraced by others. Either way. It’s worthy of discussion.

At the outset, we are definitely aware that Chief Judge Garland is going back to work at his old job.

The Working Theory

On January 3, 2017 the US Senate will gavel into session with 34 Democrats, 2 Democrat-leaning Independents and 30 Republicans. There will be 34 Senators-elect awaiting to be sworn in.

Vice President Joe Biden is the person who gavels in the new Senate session

Ordinary norms of Senate procedure would have VPOTUS recognize the soon-to-be Majority Leader Mitch McConnell (R-KY) and the Senate procedures would kick in with swearing in the new Senators and the new Republican majority.

HOWEVER… at that precise moment, the VPOTUS has the conch (as it were) and nothing legally prevents him from recognizing another Senator. In fact, the Senate rules provide that the presiding officer must recognize whoever addresses him first, and no one traditionally has a right of first recognition, a norm that changed in the early 20th Century. Let’s say Biden chooses the highest ranking active Democrat there, Sen. Dick Durbin (D-IL). This is not illegal, just a change in the norms of Senate behavior.Very much like not holding hearings on a SCOTUS nomination. Or a POTUS candidate not releasing tax returns. Or a PEOTUS having business conflicts of interest.

Let’s say Sen. Durbin - over the out of order protests of Sen. McConnell and others - does the following:

Allows the president to submit a renomination of Garland through his messengers

Allows Durbin to make parliamentary motions to make Garland’s nomination the pending business.

Allows Durbin to use the nuclear option mechanism to get a parliamentary ruling from VP Biden (or from the majority of sitting senators should Biden rule against Durbin that the Senate rules are not in effect at the beginning of a new Senate, and default rules (similar to House rules) are in effect instead.

Following an affirmative ruling, the Senate confirms Garland

The Senate as constituted votes OR Sen. Durbin suspends without yielding to any Republican and they cut an alternative deal.

Confirmation chances?

Tim: my count is 34-32 for confirmation… Sens. Heitkamp and Manchin vote no and the rest of the votes fall along party lines with the independents and Dems voting for confirmation and GOP against.

Lena:Maybe. Probably along Tim’s lines. But it requires one big influencer to make it happen - Uncle Joe.

Hesitation re: Senators Manchin (WV), Heitkamp (ND), others more in the center who are up for reelection unlikely to join.A lot of others (Stabenow (MI), Klobuchar (MN), Tester (MT), Donnelly (IN)) up for re-election - also may be unlikely if think could be a detriment

Is this legal/Constitutional?

The rule changes and precedent-breaking here are vast enough that they're changes we usually associate with a banana republic, but if the Dems are willing to do this… do you think this works, meaning is it legal, Constitutional, and within Senate rules and procedures.

(Discussion on the mechanics only here)

Adam: The Supreme Court says one Congress cannot bind a subsequent Congress, and the Constitution says the Senate makes and interprets its own rule. Those to doctrines together make this legal since interpreting the rules of a previous Congress not to apply to a new Congress is therefore a perfectly licit interpretation

Lena:Probably, but I think it could be tied up in the courts for a while.

Tim:This appears to be wildly against Senate norms, but I don’t see a hole in this that would prevent it from working. It would amend Senate rules from a prior Congress and, as Adam notes, not violate any Constitutional framework. The vote would be legal and in quorum.

For the record, there are those that say this is “fantasy.” (Sean Davis, cofounder ofThe Federalistlays out his counter argument in an article in - you guessed it -The Federalist). Long story short, there’s an argument that Senate rules for the presentation of credentials (i.e. all the new Senators) takes precedence over everything and Durbin’s motion(s) would be out of order or otherwise contrary to Senate rules.

However, Adam’s contention that the nuclear option kills this rule strikes me as a compelling rebuttal to Davis.

Is this a good idea?

This burns up a working Senate and possible sets up a Constitutional crisis. But it’s legal and sets things “right” by getting Merrick Garland on the Court. Is it a good idea? Is it worth it?

Lena:No. Afraid that people are holding on hope and will only be further disappointed. Someone needs to govern, I’m concerned about norms.

Adam: if you believe our government is completely broken, then yes. Otherwise, no. Because the new government would likely pack the court with new seats in response, do you want the Court to be a central issue, this is a great way to do it, but it won't create a working liberal Supreme Court majority.

Tim:I won’t lie… I have been attracted to this theory. I think the Dems would be fully justified to tear up norms in history’s biggest and boldest example of tit for tat. However, I recognize this damages the Senate as a working body for a long time, perhaps permanently and that’s why I lean away from it. It's a bad idea.

That said… With a President Trump coming 17 days later, perhaps that’s a feature and not a bug? But by hobbling the legislative branch, does this empower the incoming POTUS all the more? Also, will CJ Roberts have any authority to choose not to acknowledge a Justice Garland? And would Trump do anything to prevent Justice Garland from serving (bar him from the building?) after Jan 20th? Trump’s White House counsel is Donald McGahn, a former FEC member, and has a similar personality as The Donald. Expect boundary pushing legal opinions from him on this and other things.

On the other hand: if there’s a possibility this doesn’t work, you just handed President Trump a slot on the DC Circuit too. So there’s that. I’m also not sure if there’s a political backlash that would happen where Dems would reap a worse whirlwind in 2018 (and perhaps 2020) than expected.

Predictions

Is this going to happen? Will it be a vote with the mini-Senate or a deal? How does PEOTUS Trump and CJOTUS Roberts react?

Adam: This requires someone to have a burning rage at how the Garland nomination was treated. It's possible they 32 Senate Ds and Biden have this rage. However, the president must share this rage tool. He doesn't. How often have you heard Obama passionately discuss this issue? Zero times? So we're just wasting your time here with a fun scenario.

Lena:No. I think there’s a better chance of a recess appointment, which I give a .001% chance. Moreso, I think the chances of it happening are 0% based on 1) President Obama 2) Chief Judge Merrick Garland (already saying will be back to work in January). Garland is scheduled to hear oral arguments starting Jan. 18which to me indicates they don’t have the nominee on board.So if something like a recess appointment or this Jan. 3 option happens, it’d 100% be with another person and not sure who that would be..

Tim: Democrats don’t do things like this. I think POTUS sees a post-Trump future where institutions still matter and this would be contrary to that.

Bonus: Recess Appointment?

]]>The end of the year special… a viable, Constitutional path to confirming Merrick Garland on January 3, 2017. But is it practical? Or even a good idea? Preamble: January 3, 2017

There are a lot (A LOT) of pie in the sky, save the country from itself, never going to work, clickbaity theories on things these days. Most of these are sheer hackery.

HOWEVER. One thing caught our attention as it had to do with the process of confirming (or not confirming) Merrick Garland, which is kind of what this show’s been about. We think it’s been dismissed by a lot of people and embraced by others. Either way. It’s worthy of discussion.

At the outset, we are definitely aware that Chief Judge Garland is going back to work at his old job.

On January 3, 2017 the US Senate will gavel into session with 34 Democrats, 2 Democrat-leaning Independents and 30 Republicans. There will be 34 Senators-elect awaiting to be sworn in.

Vice President Joe Biden is the person who gavels in the new Senate session

Ordinary norms of Senate procedure would have VPOTUS recognize the soon-to-be Majority Leader Mitch McConnell (R-KY) and the Senate procedures would kick in with swearing in the new Senators and the new Republican majority.

HOWEVER… at that precise moment, the VPOTUS has the conch (as it were) and nothing legally prevents him from recognizing another Senator. In fact, the Senate rules provide that the presiding officer must recognize whoever addresses him first, and no one traditionally has a right of first recognition, a norm that changed in the early 20th Century. Let’s say Biden chooses the highest ranking active Democrat there, Sen. Dick Durbin (D-IL). This is not illegal, just a change in the norms of Senate behavior. Very much like not holding hearings on a SCOTUS nomination. Or a POTUS candidate not releasing tax returns. Or a PEOTUS having business conflicts of interest.

Let’s say Sen. Durbin - over the out of order protests of Sen. McConnell and others - does the following:

Allows the president to submit a renomination of Garland through his messengers

Allows Durbin to make parliamentary motions to make Garland’s nomination the pending business.

Allows Durbin to use the nuclear option mechanism to get a parliamentary ruling from VP Biden (or from the majority of sitting senators should Biden rule against Durbin that the Senate rules are not in effect at the beginning of a new Senate, and default rules (similar to House rules) are in effect instead.

Following an affirmative ruling, the Senate confirms Garland

The Senate as constituted votes OR Sen. Durbin suspends without yielding to any Republican and they cut an alternative deal.

Tim: my count is 34-32 for confirmation… Sens. Heitkamp and Manchin vote no and the rest of the votes fall along party lines with the independents and Dems voting for confirmation and GOP against.

Lena: Maybe. Probably along Tim’s lines. But it requires one big influencer to make it happen - Uncle Joe.

Hesitation re: Senators Manchin (WV), Heitkamp (ND), others more in the center who are up for reelection unlikely to join.A lot of others (Stabenow (MI), Klobuchar (MN), Tester (MT), Donnelly (IN)) up for re-election - also may be unlikely if think could be a detriment

Is this legal/Constitutional?

The rule changes and precedent-breaking here are vast enough that they're changes we usually associate with a banana republic, but if the Dems are willing to do this… do you think this works, meaning is it legal, Constitutional, and within Senate rules and procedures.

(Discussion on the mechanics only here)

Adam: The Supreme Court says one Congress cannot bind a subsequent Congress, and the Constitution says the Senate makes and interprets its own rule. Those to doctrines together make this legal since interpreting the rules of a previous Congress not to apply to a new Congress is therefore a perfectly licit interpretation

Lena: Probably, but I think it could be tied up in the courts for a while.

Tim: This appears to be wildly against Senate norms, but I don’t see a hole in this that would prevent it from working. It would amend Senate rules from a prior Congress and, as Adam notes, not violate any Constitutional framework. The vote would be legal and in quorum.

For the record, there are those that say this is “fantasy.” (Sean Davis, cofounder of The Federalist lays out his counter argument in an article in - you guessed it - The Federalist). Long story short, there’s an argument that Senate rules for the presentation of credentials (i.e. all the new Senators) takes precedence over everything and Durbin’s motion(s) would be out of order or otherwise contrary to Senate rules.

However, Adam’s contention that the nuclear option kills this rule strikes me as a compelling rebuttal to Davis.

Is this a good idea?

This burns up a working Senate and possible sets up a Constitutional crisis. But it’s legal and sets things “right” by getting Merrick Garland on the Court. Is it a good idea? Is it worth it?

Lena: No. Afraid that people are holding on hope and will only be further disappointed. Someone needs to govern, I’m concerned about norms.

Adam: if you believe our government is completely broken, then yes. Otherwise, no. Because the new government would likely pack the court with new seats in response, do you want the Court to be a central issue, this is a great way to do it, but it won't create a working liberal Supreme Court majority.

Tim: I won’t lie… I have been attracted to this theory. I think the Dems would be fully justified to tear up norms in history’s biggest and boldest example of tit for tat. However, I recognize this damages the Senate as a working body for a long time, perhaps permanently and that’s why I lean away from it. It's a bad idea.

That said… With a President Trump coming 17 days later, perhaps that’s a feature and not a bug? But by hobbling the legislative branch, does this empower the incoming POTUS all the more? Also, will CJ Roberts have any authority to choose not to acknowledge a Justice Garland? And would Trump do anything to prevent Justice Garland from serving (bar him from the building?) after Jan 20th? Trump’s White House counsel is Donald McGahn, a former FEC member, and has a similar personality as The Donald. Expect boundary pushing legal opinions from him on this and other things.

On the other hand: if there’s a possibility this doesn’t work, you just handed President Trump a slot on the DC Circuit too. So there’s that. I’m also not sure if there’s a political backlash that would happen where Dems would reap a worse whirlwind in 2018 (and perhaps 2020) than expected.

Predictions

Is this going to happen? Will it be a vote with the mini-Senate or a deal? How does PEOTUS Trump and CJOTUS Roberts react?

Adam: This requires someone to have a burning rage at how the Garland nomination was treated. It's possible they 32 Senate Ds and Biden have this rage. However, the president must share this rage tool. He doesn't. How often have you heard Obama passionately discuss this issue? Zero times? So we're just wasting your time here with a fun scenario.

Lena: No. I think there’s a better chance of a recess appointment, which I give a .001% chance. Moreso, I think the chances of it happening are 0% based on 1) President Obama 2) Chief Judge Merrick Garland (already saying will be back to work in January). Garland is scheduled to hear oral arguments starting Jan. 18 which to me indicates they don’t have the nominee on board.So if something like a recess appointment or this Jan. 3 option happens, it’d 100% be with another person and not sure who that would be..

Tim: Democrats don’t do things like this. I think POTUS sees a post-Trump future where institutions still matter and this would be contrary to that.

Bonus: Recess Appointment?]]>59:43clean Advice & Consent 19: Transition turmoil + SCOTUSWed, 23 Nov 2016 04:27:50 +0000It's transition season now that the election is over and a few questions remain for the Garland nomination... notably, has the Senate waived its advice and consent role? And how will the new roster of the Senate Judiciary Committee impact this vacancy and other business before it in the next Congress? Lots to unpack before we head over the hills and through the woods for a holiday break!

Has the Senate waived its advice & consent “rights” allowing Merrick Garland to take a seat SCOTUS?

Even if he wasn’t, probably too late (should have happened this summer)

Adam: The question Democrats/liberal activists have to confront is: As the party/ideology that believes that government can help society, how much do they try to explode the institutions of government with the goal, ironically, of protecting those institutions from Trump (we had to bomb the village to save it) vs. how much do they normalize Trump by trying to protect the institutions of government by not blowing them up.

For example, the Senate rules allow Democrats to basically force the Senate to do nothing. The Dems could filibuster the organizing resolution laying out the new committee chairs and members for the new Congress; unlike almost any other motion, they can move to adjourn the Senate no matter what the pending business is (and, if they time the motion right, win it, or at least force Rs to be in DC whenever the Senate is in session--normally, many senators are out of town between Thursday midday and Tuesday midday even if the Senate is in session); they can force every bill to be read; they can force every vote to occur twice using the motion to reconsider; they can file cloture motions on any bill pending on the floor that take precedence over much other Senate business; they can use these dilatory tactics to shut down the government.

To tie this back into the subject of the podcast, they can refuse to consent to floor votes on any nomination, from who becomes a commander in the Coast Guard to who becomes a Supreme Court justice. This would require the Senate to change the rules on Supreme Court justices to allow them to overcome a filibuster with a simple majority vote, and for the other nominees--where cloture already takes a simple majority--it would require all nominees to have to be debated for 30 hours before being confirmed (if Dems don’t give their consent to time running during a recess).

These are serious steps. None would have the result of stopping a determined Republican majority. It would only have the effect of slowing down Republicans, infuriating them, and making it clear that Democrats do not see Trump as a politician that they can play ball with.

It would also go a long way to destroying the Senate as an institution. Do Democrats want to do that? Do they want to provoke constitutional crisis? Or are they willing to risk normalizing Trump by not fighting tooth and nail? I would guess the answer to that last question is “yes,” although that will go a long way to reelecting Trump in 2020 (unless a recession intervenes).

Tim:

If Democrats let this go without some kind of response, it’s s like thanking the schoolyard bully after the daily lunch money shakedown. But this is a burn the house down strategy that would (a) not work, and (b) cause damage to institutions the Dems care about. So, ¯\_(ツ)_/¯

Lena:While I think it’s fascinating, this isn’t the kind of move that’s going to be 1) successful or 2) helpful in protecting the institutions we care about. Respect the institutions, and checks on it. There are certainly those who have tried every way possible to get the Senate to do something, and I’d like to think that the words the President shall appoint has meaning. But the clause before “appoint” about “advice and consent” is something that has to happen - I do think it’s an affirmative duty.

Dan:Just like Merrick Garland’s parking space at the Supreme Court, I got nothing.

Changes on the Judiciary Committee

Spoiler alert: Sen. Sessions may not be there.

Sen. Schumer definitely won’t be there.

New ranking member… Dianne Feinstein?

Discuss.

Lena:First woman to serve on the Senate Judiciary Committee. First woman to serve as chair or ranking member of the panel, which is a tremendous role given the Supreme Court and other nominations that will go through the Committee.

Dan:I just need to publicly cry over this for a moment:“Religious freedoms, Alito said, are “in even greater danger.” Quoting “the latest recipient of the Nobel Prize for literature,” Bob Dylan, Alito said, “It’s not dark yet, but its getting there.”

Why this should also be relevant for concern as Attorney General (hi Civil Rights division!)

Already normalized?

Sen. Dianne Feinstein (D-CA), the leading Democrat on the Senate Judiciary Committee, allowed in a statementthat she and Sessions “differ on a great many issues,” she emphasized that hearings would be a “thorough vetting” of Sessions’s views — hardly a promise to oppose his confirmation.(Vox)

One can foresee a case on appeal where the Trump admin’s SG citesKorematsufavorably while arguing the Constitutionality of a Muslim registry.

Or, they do what’s been done before and define the registry as immigrants from Muslim countries and bypass the matter. But will this capture everyone they want to capture? And is this a distinction without a difference from a civil rights perspective?

Adam:They’re not going to have a registration program for citizen Muslims, and they’re going to hold that up as a compromise. That’s partly because any action that requires citing Korematsu favorably is doomed. Korematsu may have set out the strict liability standard for laws that facially categorizes on the basis of race, it is NOT good law. For one, no law/other state action that facially categorizes on the basis of race has been upheld by the Court since Korematsu except in the area of affirmative action. For another:

Judicial overruling is not the only way that a decision can lose its status as “law.”Korematsuhas been, in the words of Justice Stephen Breyer, “thoroughly discredited”: by Congress, by the Executive Branch, and by the federal judiciary. Scholars and judges have long treated the decision as part of an “anti-canon”—decisions so thoroughly and unanimously repudiated that they exemplify what our law isnot. No court treatsKorematsuas precedent worthy of being followed. Quite to the contrary: it is routine for judicial nominees to expressly disavow the decision. Chief Justice Roberts did that in his confirmation hearings in 2005; so did Justice Alito in 2006 and Justice Sotomayor in 2009. Justice Scalia rankedKorematsuwithDred Scottas a paragon of injustice. “It is fair to say,” Professor Jamal Greenewrotefive years ago in theHarvard Law Review, “thatKorematsuis almost uniformly recognized by serious lawyers and judges to be bad precedent, indeed so bad that its use by one’s opponent is likely to prompt a vociferous and public denial.” . . .

No decent person can view the internment as any kind of “precedent” for acceptable government behavior. And no passable lawyer treats the Supreme Court’s decision inKorematsuas good law.

]]>It's transition season now that the election is over and a few questions remain for the Garland nomination... notably, has the Senate waived its advice and consent role? And how will the new roster of the Senate Judiciary Committee impact this vacancy and other business before it in the next Congress? Lots to unpack before we head over the hills and through the woods for a holiday break!

Has the Senate waived its advice & consent “rights” allowing Merrick Garland to take a seat SCOTUS?

Even if he wasn’t, probably too late (should have happened this summer)

Adam: The question Democrats/liberal activists have to confront is: As the party/ideology that believes that government can help society, how much do they try to explode the institutions of government with the goal, ironically, of protecting those institutions from Trump (we had to bomb the village to save it) vs. how much do they normalize Trump by trying to protect the institutions of government by not blowing them up.

For example, the Senate rules allow Democrats to basically force the Senate to do nothing. The Dems could filibuster the organizing resolution laying out the new committee chairs and members for the new Congress; unlike almost any other motion, they can move to adjourn the Senate no matter what the pending business is (and, if they time the motion right, win it, or at least force Rs to be in DC whenever the Senate is in session--normally, many senators are out of town between Thursday midday and Tuesday midday even if the Senate is in session); they can force every bill to be read; they can force every vote to occur twice using the motion to reconsider; they can file cloture motions on any bill pending on the floor that take precedence over much other Senate business; they can use these dilatory tactics to shut down the government.

To tie this back into the subject of the podcast, they can refuse to consent to floor votes on any nomination, from who becomes a commander in the Coast Guard to who becomes a Supreme Court justice. This would require the Senate to change the rules on Supreme Court justices to allow them to overcome a filibuster with a simple majority vote, and for the other nominees--where cloture already takes a simple majority--it would require all nominees to have to be debated for 30 hours before being confirmed (if Dems don’t give their consent to time running during a recess).

These are serious steps. None would have the result of stopping a determined Republican majority. It would only have the effect of slowing down Republicans, infuriating them, and making it clear that Democrats do not see Trump as a politician that they can play ball with.

It would also go a long way to destroying the Senate as an institution. Do Democrats want to do that? Do they want to provoke constitutional crisis? Or are they willing to risk normalizing Trump by not fighting tooth and nail? I would guess the answer to that last question is “yes,” although that will go a long way to reelecting Trump in 2020 (unless a recession intervenes).

Tim:

If Democrats let this go without some kind of response, it’s s like thanking the schoolyard bully after the daily lunch money shakedown. But this is a burn the house down strategy that would (a) not work, and (b) cause damage to institutions the Dems care about. So, ¯\_(ツ)_/¯

Lena: While I think it’s fascinating, this isn’t the kind of move that’s going to be 1) successful or 2) helpful in protecting the institutions we care about. Respect the institutions, and checks on it. There are certainly those who have tried every way possible to get the Senate to do something, and I’d like to think that the words the President shall appoint has meaning. But the clause before “appoint” about “advice and consent” is something that has to happen - I do think it’s an affirmative duty.

Dan: Just like Merrick Garland’s parking space at the Supreme Court, I got nothing.

Changes on the Judiciary Committee

Spoiler alert: Sen. Sessions may not be there.

Sen. Schumer definitely won’t be there.

New ranking member… Dianne Feinstein?

Discuss.

Lena: First woman to serve on the Senate Judiciary Committee. First woman to serve as chair or ranking member of the panel, which is a tremendous role given the Supreme Court and other nominations that will go through the Committee.

Dan: I just need to publicly cry over this for a moment: “Religious freedoms, Alito said, are “in even greater danger.” Quoting “the latest recipient of the Nobel Prize for literature,” Bob Dylan, Alito said, “It’s not dark yet, but its getting there.”

Why this should also be relevant for concern as Attorney General (hi Civil Rights division!)

Already normalized?

Sen. Dianne Feinstein (D-CA), the leading Democrat on the Senate Judiciary Committee, allowed in a statementthat she and Sessions “differ on a great many issues,” she emphasized that hearings would be a “thorough vetting” of Sessions’s views — hardly a promise to oppose his confirmation. (Vox)

One can foresee a case on appeal where the Trump admin’s SG cites Korematsu favorably while arguing the Constitutionality of a Muslim registry.

Or, they do what’s been done before and define the registry as immigrants from Muslim countries and bypass the matter. But will this capture everyone they want to capture? And is this a distinction without a difference from a civil rights perspective?

Adam: They’re not going to have a registration program for citizen Muslims, and they’re going to hold that up as a compromise. That’s partly because any action that requires citing Korematsu favorably is doomed. Korematsu may have set out the strict liability standard for laws that facially categorizes on the basis of race, it is NOT good law. For one, no law/other state action that facially categorizes on the basis of race has been upheld by the Court since Korematsu except in the area of affirmative action. For another:

Judicial overruling is not the only way that a decision can lose its status as “law.” Korematsu has been, in the words of Justice Stephen Breyer, “thoroughly discredited”: by Congress, by the Executive Branch, and by the federal judiciary. Scholars and judges have long treated the decision as part of an “anti-canon”—decisions so thoroughly and unanimously repudiated that they exemplify what our law is not. No court treats Korematsu as precedent worthy of being followed. Quite to the contrary: it is routine for judicial nominees to expressly disavow the decision. Chief Justice Roberts did that in his confirmation hearings in 2005; so did Justice Alito in 2006 and Justice Sotomayor in 2009. Justice Scalia rankedKorematsu with Dred Scott as a paragon of injustice. “It is fair to say,” Professor Jamal Greene wrote five years ago in the Harvard Law Review, “that Korematsu is almost uniformly recognized by serious lawyers and judges to be bad precedent, indeed so bad that its use by one’s opponent is likely to prompt a vociferous and public denial.” . . .

No decent person can view the internment as any kind of “precedent” for acceptable government behavior. And no passable lawyer treats the Supreme Court’s decision in Korematsu as good law.

]]>53:54yesAdvice & Consent 018: What's Next?Fri, 11 Nov 2016 04:23:02 +0000Welcome to the Advice & Consent Podcast: news views and insight on the future of the supreme court. Shownotes and more are available at scotuscast.com. Email us at advice@scotuscast.com…. Check us out on Twitter and Facebook too. I’m Tim Mooney, joined by the ragtag gang of the usual suspects… Adam Shah and Lena Zwarensteyn. Dan Roth is currently at a cruising altitude of 30,000 feet and will return in a future episode!

Merrick Garland? Any closing thoughts on what the GOP stonewall meant and means going forward?

Adam

Where the heck was President Obama if he really wanted to get Garland confirmed? Where the heck was Hillary Clinton if she thought a court that promoted equality and working people’s rights was important?

I’ve discussed this before, but on the stump in 2004, then-President Bush mentioned federal judges in EVERY SINGLE SPEECH. Even Cheney did it. Neither Bush nor Cheney were even lawyers, much less constitutional scholars. The media covered judges all the time in 2004. People voted on the issue. If you NEVER mention the issue, guess what? Your preferences won’t make a difference. I’ve added an appendix to the shownotes with links to each speech in which George Bush mentioned judges during the last 4 days in October 2004 alone (I originally planned to link to speeches for the full month; when it turned out that there were five or more such speeches each day, I limited it to a week and then just four days. It’s incredible how often Bush spoke about judges).

How many times did President Obama mention judges this year? Hillary Clinton?

As for what’s next, [looking at what the Court did today provides some answers]. The Court has routinely been turning down cases that conservative justices usually vote to hear, such as cases involving prosecutors appealing pro-criminal defendant decisions by state supreme courts and lower federal courts to avoid both 4-4 splits and emboldening pro-rights of the accused advocates. I suspect the Court will start granting cert on those cases (maybe as early as tomorrow, or maybe just holding those cases by one week as is their current practices and then granting cert next week) on the hope that even if the Court splits 4-4, by the end of the term, a ninth justice will be on the bench and they can order reargument for Fall 2017.

To answer a listener question (shout-out to Marla Wilson) President Obama has one last chance to fill the vacancy. He can give a recess appointment to someone before the new Congress is sworn in on January 3, 2017. That’s true even if the old Congress is in session continuously and gavels the new Congress into session instantaneously. A justice appointed that day would serve at most for one year, until January 3, 2018 (I’m not sure whether it would expire sooner if the Senate adjourned the first session of the next Congress sine die on an earlier date). There is some question about whether it is constitutional to give a recess appointment to a federal judge (who is supposed to serve for life), but 309 federal judges have received recess appointments, a practice that began with George Washington. President Obama has not recess-appointed any federal judges, but both President Clinton and President George W. Bush did so. Nine SCOTUS justices have received recess appointments, but none since President Eisenhower gave recess appointments to Earl Warren, William Brennan, and Potter Stewart. For more information, see http://www.senate.gov/reference/resources/pdf/RL31112.pdf

Lena:McConnell won. We let him.

I hate to predict because I don’t want people to disengage. I want people to demand accountability. President Obama is STILL THE PRESIDENT. And we’re still paying our Senators to do their job. They should give him a hearing. They should consider the 54 nominees pending. We have too much to do already.

In the future, I have no idea what this means for future nominations. We have a new normal.

Tim:I continue to be appalled with what Republicans did. President Obama was disrespected. The American presidential vote in 2012 was dishonored. The GOP will just run the clock out… no hearings and no votes.

Look, I’m not a Mitch McConnell guy. Like, at all. But listen to this: “I think it’s always a mistake to misread your mandate, and frequently new majorities think it’s going to be forever. Nothing is forever in this country . . . We’ve been given a temporary lease on power, if you will. And I think we need to use it responsibly.”

So, there’s that.

Assuming an opening remains on the Court, what’s the timeline for President-Elect Trump’s nomination?

Lena:Day one. Probably sooner we’ll have an idea of the top few contenders.

AdamAs soon as possible. Along with repealing Obamacare, this is something open, tangible, and very high profile that he can give to the base.

Tim:I think there’s a likelihood that the nominee will be formally named before the end of January and possibly leaked before inauguration as a test balloon.

Lena:We already have a list. He’s shown his hand. I’m still sticking with 11th Circuit Court of Appeals Judge William Pryor.

AdamI think he puts the people on his list, plus Omarosa and Meat Loaf, through an Apprentice-style process to select the winner. On a serious note, I think the co-panelists have made fine picks, but we need to think in terms of at least three new justices on the Court, not just one (no president has put three new people on the Court since Reagan and no one has put 4 on the bench since Nixon (unless you consider Associate Justice Rehnquist and Chief Justice Rehnquist to be different people)). I don’t think Justice Ginsburg makes it until 2020 and it’s a slim possibility that Justice Breyer doesn’t either. Clarence Thomas will be in his 70s by 2020 and has Scalia’s death and Ginsburg’s egregious decision not to resign staring him in the face. I actually think that Anthony Kennedy is very unlikely to resign. He knows that without a liberal replacement for Scalia, the Court is 1 vote away from undoing the reason he’ll be in the history books, gay rights.

Tim: Alabama Senator Jeff Sessions. He was an early supporter and one of the handful of names the President Elect specifically mentioned in the victory speech… as I said on a previous show, I think he checks all the boxes for Trump and the right.

Filibuster? Nuclear option?

Adam:Dems will decide whether to conciliate or to block. Don’t know right answer.

Tim:I don’t know how I feel about a filibuster - I’ve never been comfortable with them in the context of nominations (although you can make an argument there’s a difference between lifetime appointments and those that aren’t). I also don’t know how I feel about tit for tat, but it’s clear to me that a vacancy on the Court in 2020 is subject to what I will now call the Garland Rule. I think it’s always been a bullshit position, but I wouldn’t blame Senate Dems from throwing it out there as a make-up call for President Obama. Which is ridiculous.

Lena:Our constitutional democracy is threatened: on process and substance.

Programming note:We’ll continue the show through the nomination and confirmation process.

]]>Welcome to the Advice & Consent Podcast: news views and insight on the future of the supreme court. Shownotes and more are available at scotuscast.com. Email us at advice@scotuscast.com…. Check us out on Twitter and Facebook too. I’m Tim Mooney, joined by the ragtag gang of the usual suspects… Adam Shah and Lena Zwarensteyn. Dan Roth is currently at a cruising altitude of 30,000 feet and will return in a future episode!

Merrick Garland? Any closing thoughts on what the GOP stonewall meant and means going forward?

Adam

Where the heck was President Obama if he really wanted to get Garland confirmed? Where the heck was Hillary Clinton if she thought a court that promoted equality and working people’s rights was important?

I’ve discussed this before, but on the stump in 2004, then-President Bush mentioned federal judges in EVERY SINGLE SPEECH. Even Cheney did it. Neither Bush nor Cheney were even lawyers, much less constitutional scholars. The media covered judges all the time in 2004. People voted on the issue. If you NEVER mention the issue, guess what? Your preferences won’t make a difference. I’ve added an appendix to the shownotes with links to each speech in which George Bush mentioned judges during the last 4 days in October 2004 alone (I originally planned to link to speeches for the full month; when it turned out that there were five or more such speeches each day, I limited it to a week and then just four days. It’s incredible how often Bush spoke about judges).

How many times did President Obama mention judges this year? Hillary Clinton?

As for what’s next, [looking at what the Court did today provides some answers]. The Court has routinely been turning down cases that conservative justices usually vote to hear, such as cases involving prosecutors appealing pro-criminal defendant decisions by state supreme courts and lower federal courts to avoid both 4-4 splits and emboldening pro-rights of the accused advocates. I suspect the Court will start granting cert on those cases (maybe as early as tomorrow, or maybe just holding those cases by one week as is their current practices and then granting cert next week) on the hope that even if the Court splits 4-4, by the end of the term, a ninth justice will be on the bench and they can order reargument for Fall 2017.

To answer a listener question (shout-out to Marla Wilson) President Obama has one last chance to fill the vacancy. He can give a recess appointment to someone before the new Congress is sworn in on January 3, 2017. That’s true even if the old Congress is in session continuously and gavels the new Congress into session instantaneously. A justice appointed that day would serve at most for one year, until January 3, 2018 (I’m not sure whether it would expire sooner if the Senate adjourned the first session of the next Congress sine die on an earlier date). There is some question about whether it is constitutional to give a recess appointment to a federal judge (who is supposed to serve for life), but 309 federal judges have received recess appointments, a practice that began with George Washington. President Obama has not recess-appointed any federal judges, but both President Clinton and President George W. Bush did so. Nine SCOTUS justices have received recess appointments, but none since President Eisenhower gave recess appointments to Earl Warren, William Brennan, and Potter Stewart. For more information, see http://www.senate.gov/reference/resources/pdf/RL31112.pdf

Lena: McConnell won. We let him.

I hate to predict because I don’t want people to disengage. I want people to demand accountability. President Obama is STILL THE PRESIDENT. And we’re still paying our Senators to do their job. They should give him a hearing. They should consider the 54 nominees pending. We have too much to do already.

In the future, I have no idea what this means for future nominations. We have a new normal.

Tim: I continue to be appalled with what Republicans did. President Obama was disrespected. The American presidential vote in 2012 was dishonored. The GOP will just run the clock out… no hearings and no votes.

Look, I’m not a Mitch McConnell guy. Like, at all. But listen to this: “I think it’s always a mistake to misread your mandate, and frequently new majorities think it’s going to be forever. Nothing is forever in this country . . . We’ve been given a temporary lease on power, if you will. And I think we need to use it responsibly.”

So, there’s that.

Assuming an opening remains on the Court, what’s the timeline for President-Elect Trump’s nomination?

Lena: Day one. Probably sooner we’ll have an idea of the top few contenders.

Adam As soon as possible. Along with repealing Obamacare, this is something open, tangible, and very high profile that he can give to the base.

Tim: I think there’s a likelihood that the nominee will be formally named before the end of January and possibly leaked before inauguration as a test balloon.

Lena: We already have a list. He’s shown his hand. I’m still sticking with 11th Circuit Court of Appeals Judge William Pryor.

Adam I think he puts the people on his list, plus Omarosa and Meat Loaf, through an Apprentice-style process to select the winner. On a serious note, I think the co-panelists have made fine picks, but we need to think in terms of at least three new justices on the Court, not just one (no president has put three new people on the Court since Reagan and no one has put 4 on the bench since Nixon (unless you consider Associate Justice Rehnquist and Chief Justice Rehnquist to be different people)). I don’t think Justice Ginsburg makes it until 2020 and it’s a slim possibility that Justice Breyer doesn’t either. Clarence Thomas will be in his 70s by 2020 and has Scalia’s death and Ginsburg’s egregious decision not to resign staring him in the face. I actually think that Anthony Kennedy is very unlikely to resign. He knows that without a liberal replacement for Scalia, the Court is 1 vote away from undoing the reason he’ll be in the history books, gay rights.

Tim: Alabama Senator Jeff Sessions. He was an early supporter and one of the handful of names the President Elect specifically mentioned in the victory speech… as I said on a previous show, I think he checks all the boxes for Trump and the right.

Filibuster? Nuclear option?

Adam: Dems will decide whether to conciliate or to block. Don’t know right answer.

Tim: I don’t know how I feel about a filibuster - I’ve never been comfortable with them in the context of nominations (although you can make an argument there’s a difference between lifetime appointments and those that aren’t). I also don’t know how I feel about tit for tat, but it’s clear to me that a vacancy on the Court in 2020 is subject to what I will now call the Garland Rule. I think it’s always been a bullshit position, but I wouldn’t blame Senate Dems from throwing it out there as a make-up call for President Obama. Which is ridiculous.

Lena: Our constitutional democracy is threatened: on process and substance.

Programming note: We’ll continue the show through the nomination and confirmation process.

]]>01:00:34yesAdvice & Consent 17: The two-month-long podcast that may last five years?Fri, 04 Nov 2016 06:53:13 +0000The show that should have lasted a couple of months during a relatively controversy-free set of hearings may now be relevant for four more years? The ragtag gang of the usual suspects rifles through their nonexistent agreement to figure an out before discussing the latest revelations from Republicans telegraphing more stonewalling less than one week before the election...

Merrick Garland at 232 days

Today as we record the show (11/3) marks day 232 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are about at the 7½ month mark since his nomination onMarch 16, 2016.

GOP Senators are telegraphing they may shut down HRC nominees - a flip flop from their position of let the next President decide...

Let’s pull a Rubio and dispel with the notion that Sen. Cruz doesn’t know what he’s doing… he knows exactly what he’s doing! What is the truth behind the “longstanding” history of the Court operating shorthanded?

Adam:Changing the size of the court (including the lower courts, mentioning them for Lena’s sake) for partisan and/or ideological reasons is basically saying “Yes, we’re creating a constitutional crisis.” The first time the size of the courts was changed for partisan reasons was the first time the government shifted partisan control, with the Jeffersonian Republicans defeating the Federalists in 1800. In a lame duck session, the Federalists vastly increased the size of the federal courts and John Adams appointed and the Senate confirmed a host of new judges. Jefferson refused to seat these judges, creating a constitutional crisis leading toMarbury v. Madison.

The second time the size of the judiciary was changed because of partisan/ideological reasons was when President William Henry Harrison died right at the beginning of his presidency in 1841. John Tyler succeeded him (Tippecanoe and Tyler too). This precipitated a constitutional crisis because Harrison was the first Whig president, and the Whigs did not have much of a coherent platform besides not liking either Andrew Jackson or Martin Van Buren, and Tyler was not a powerful politician in that party, especially when measured against the likes of Henry Clay. These fissures in the governing party deepened into crisis because Harrison was the first president who died in office, and he died barely a month into office. There was no precedent for whether the Vice President just became an acting/caretaker president in such a case or whether s/he was a new president. Tyler set the precedent that the VP assumes the full presidency in such a case, but the Congress at the time wouldn’t accept him and did not confirm his nominees. But even Tyler’s nominees got votes on the Senate floor and eventually Tyler got a confirmation.

The third and last time the size of the judiciary changed for partisan/ideological reasons was in 1865-1868. No one would deny that this was a constitutional crisis. President Lincoln was assassinated just after his second term began and his newly sworn-in VP Andrew Johnson became president. Johnson, like Tyler, was coming into office following the first president from a new party and wasn’t a grandee of that party (and wasn’t really part of the party at all). Unlike the Whigs, though, the Republicans had a clear platform on the issue of reconstruction (the extent to which Lincoln agreed with that platform is less clear) and weren’t ready to cede any power to Johnson. No one would deny that this was a time of constitutional crisis. The Civil War had just ended. A large chunk of the nation was under military occupation. There was a new president who had very little power other than what was explicitly granted him in the Constitution, including the power to nominate judges, and there was a united--and radical--Congress opposing him. Finally, we had a Supreme Court whose most momentous decision to date,Dred Scott, had been a catalyst for the Civil War, highlighting how important judicial ideology was. These factors would lead Congress to decrease the number of justices each time a justice retired, denying Johnson the chance to appoint justices. The year Johnson left office and Ulysses Grant took over, 1869, Congress reset the number of justices at nine where it’s been ever since.

Of course, there was a fourth attempt to change the size of the judiciary for partisan or ideological reasons occurred in 1937, when theLochner-era Supreme Court stymied the New Deal. Everyone listening probably knows about this from their history class, so there’s no need for detail. There are some myths about this time in history, but what is undisputably true is that one justice reversed himself on the issue of the New Deal’s constitutionality by the time the next case came before the Court and then a bunch of justices died or retired, letting FDR pack the court in the time-honored way, so the constitutional crisis withered away.

Tim: The size of the Court has fluctuated based onthe Judiciary Act of 1789 (and its amendments). Last episode I talked about the blockade of the President’s nominee as revealing a bug in the system that has been covered over for centuries by good behavior and tradition. Rules dictate the process but these norms of the Senate hearing, debating and voting on nominees “are so longstanding and accepted that they have the status of formal rules — until one party decides to break them.” (hat tip toPaul Waldman in the WaPofor that). POTUS nominates, Senate considers and votes. With the Senate deviating and electing them out serving as the only solution is an imperfect solution. Elections every 6 years are a bad way to police this.

Lena:Precisely. Last time we changed the number of justices, there were 37 states. If this was EVER the argument, it could have occurred in February. And to really underscore what Adam said, it takes Congress to do something about changing the numbers. Or I guess I should say, that’s the way that our Constitution and history has had that happened. It’s rather cowardly to just let the number of justices dwindle over time because Senate leadership refuses to consider anyone to the Court. I mean, they way that Senate Republicans are getting things done is by not doing anything which then results in the withering and shutting down of things like our judiciary. This really isn’t acceptable.

What would a multi-year shorthanded court mean for SCOTUS in the short and long term?

Tim: It’s a disaster. The Court can’t maintain the workload shorthanded. The Court also cannot continue with ideological deadlocks that are caused by the GOP Senate’s blockade.

Lena:I don’t want to think about it. It minimizes the Court and possible will take a generation to restore and regain legitimacy, if it does. We need a ninth decisive vote.

Not surprised that I’m going to talk about how understaffed the federal judiciary is at all levels. 114 vacancies current (96) and known future (18), with 38 judicial emergencies.

Fun fact: there were 12 judicial emergencies in 2015 when Republicans took over the majority in the Senate.

Another fun fact: more than 11% of federal judiciary is vacant. At this time in President George W. Bush’s term in office, it was 4.3%.

So, everyone’s focused on SCOTUS - and I don’t discredit that. But our lower courts are also getting shut down. The next President will likely have well over 110 vacancies to fill on her first day. There are only 870 authorized judgeships. Justice at ALL levels is going to be compromised, delayed. This isn’t how our government is supposed to work.

The President needs to be able to nominate and appoint people.

Congress, and here the Senate, needs to take action.

And the Judiciary needs staffing. ASAP.

Adam: Sometimes finality is really necessary even if the final judgment is a horrendous miscarriage of justice. What if the Supreme Court had said about slavery/segregation/Japanese internment/school integration/abortion/marriage equality “gee, we dunno.”

If the Dems (hypothetically) take the Senate is there any scenario where theydon’tgo for the nuclear option if there is still an open seat after the next Congress comes to session?

Tim: Get out your geiger counters and lead-lined suits. Barring an unlikely reversal by GOP Senators, this goes nuclear and the politics get ugly. Maybe impeachment hearings for Chuck Schumer?

Lena:The only question is when. But only after there’s been even worse obstruction. Because, we’re gluttons?!

Whither Merrick Garland? After a bruising campaign do we foresee the Dems and GOP look to avoid immediate conflict and confirm him in the lame duck session, keeping the powder dry for the next opening?

Tim:

Evidence of maybe yes:

Former Cruz campaign manager Jeff Roe suggests the right would be pragmatic about confirming Garland (1947 podcast)

Pressure from the left to go more liberal and claim mandate from election

Pressure from the right to dig in and maintain “Scalia seat”

Aforementioned comments from Sen. Burr

If the Senate stays with the GOP, the GOP will undoubtedly claim it as a mandate from the people that it’s a check on a President HRC and use that as its reasoning to obstruct.

Lena:

I hope so. Serves most people’s best interests.

Rs aren’t united on this.

Levers - 1st Grassly, 2nd McConnell

Sen. Grassley has said holding a hearing is too expensive. But he’s bragging about other hearings he is going to hold.

Adam

Yes. I think the GOP would love to find a way out. I’m not sure that Republicans have that luxury. The forces of extremism coming from Fox, Limbaugh, Ann Coulter, etc that led to Trump are still there. Also, Boehner said, “that's enough. I'm out.” Maybe that happens in the Senate

Let’s cover the HRC thing next show… if it’s still relevant

HRC criteria for a SCOTUS Justice includes graduation from a “top 5 law school” - elitist or pragmatic? (cough cough elitist)

[Adam note: This was criteria selected by the writer, not by the Clinton campaign]

Tim:If this is a real thing, then I have one name: Thurgood Marshall.[If it’s not, let’s drop it from the rundown on the show]

Lena:Both? Definitely elitist. But I think it’s an interesting point to bring out for people.

If the GOP (hypothetically) retains the Senate is there any scenario where (hypothetical) President Clinton can get a nominee hearing and vote? Would this be more palatable if the Republican Senate at least held hearings or (!!) a vote on her potential nominees but telegraphed they’d be voted down each time?

Tim:I would love this to be about substance. If the GOP chooses to vote down HRC or BHO nominees on substance, so be it. But they strike me as being more politically craven or even worse cowardly. If the country *really* supports opposing these nominees, shouldn’t these Senators proudly to proclaim the reasons for their opposition using the forum of hearings and votes!? Clearly not.

Lena:Agree, substance would be lovely. Optimistically think they’ll have to do what they can to appear “reasonable” so maybe a few get through. But really… I think more has to be done procedurally to make sure any delays on nominees requires Senators to go to the floor to talk it out - actually say why they won’t return a blue slip, make Senators actually filibuster with words not the threat of it.

Adam:I think just like shutting down the government (the executive branch), eventually, this will become an issue of political survival. At a certain point, Clinton would make this a huge issue and would win if Republicans refused to hold a hearing or an up-or-down vote. “Vote them up or vote them down, but vote” has always been a popular message and the Senate will be forced to act. Republicans know, however, that once the process starts, the nominee becomes more popular (unless you’re Robert Bork), so I think that Republicans know that once they start holding hearings, they won’t be able to vote against nominee after nominee for a full 4 years

Adam:I’m going to let bygones be bygones about whether retirements should have already happened in 2014. Of course they need to happen now.

Tim: I’ve always thought Justices get to retire when they want to but now that we see the “normal rule” of President gets elected, gets to nominate an open seat and Senate holds a hearing and votes is seeminglyno longer operable, so perhaps Justices need to be more strategic and mindful of when to end their time on the bench. I hate that should be the case now.

Lena:Depends on the President, of course, but I think there may be a few eyeing this.Chief Judge Garland’s languishing nomination may factor into their calculus.

Programming note… we’ll be back next Thursday after the election to read the tea leaves on initial post-election statements from the President-elect, the current President and key Senators as we start the lame duck session.

]]>The show that should have lasted a couple of months during a relatively controversy-free set of hearings may now be relevant for four more years? The ragtag gang of the usual suspects rifles through their nonexistent agreement to figure an out before discussing the latest revelations from Republicans telegraphing more stonewalling less than one week before the election... Merrick Garland at 232 days

Today as we record the show (11/3) marks day 232 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are about at the 7½ month mark since his nomination on March 16, 2016.

GOP Senators are telegraphing they may shut down HRC nominees - a flip flop from their position of let the next President decide...

Let’s pull a Rubio and dispel with the notion that Sen. Cruz doesn’t know what he’s doing… he knows exactly what he’s doing! What is the truth behind the “longstanding” history of the Court operating shorthanded?

Adam: Changing the size of the court (including the lower courts, mentioning them for Lena’s sake) for partisan and/or ideological reasons is basically saying “Yes, we’re creating a constitutional crisis.” The first time the size of the courts was changed for partisan reasons was the first time the government shifted partisan control, with the Jeffersonian Republicans defeating the Federalists in 1800. In a lame duck session, the Federalists vastly increased the size of the federal courts and John Adams appointed and the Senate confirmed a host of new judges. Jefferson refused to seat these judges, creating a constitutional crisis leading to Marbury v. Madison.

The second time the size of the judiciary was changed because of partisan/ideological reasons was when President William Henry Harrison died right at the beginning of his presidency in 1841. John Tyler succeeded him (Tippecanoe and Tyler too). This precipitated a constitutional crisis because Harrison was the first Whig president, and the Whigs did not have much of a coherent platform besides not liking either Andrew Jackson or Martin Van Buren, and Tyler was not a powerful politician in that party, especially when measured against the likes of Henry Clay. These fissures in the governing party deepened into crisis because Harrison was the first president who died in office, and he died barely a month into office. There was no precedent for whether the Vice President just became an acting/caretaker president in such a case or whether s/he was a new president. Tyler set the precedent that the VP assumes the full presidency in such a case, but the Congress at the time wouldn’t accept him and did not confirm his nominees. But even Tyler’s nominees got votes on the Senate floor and eventually Tyler got a confirmation.

The third and last time the size of the judiciary changed for partisan/ideological reasons was in 1865-1868. No one would deny that this was a constitutional crisis. President Lincoln was assassinated just after his second term began and his newly sworn-in VP Andrew Johnson became president. Johnson, like Tyler, was coming into office following the first president from a new party and wasn’t a grandee of that party (and wasn’t really part of the party at all). Unlike the Whigs, though, the Republicans had a clear platform on the issue of reconstruction (the extent to which Lincoln agreed with that platform is less clear) and weren’t ready to cede any power to Johnson. No one would deny that this was a time of constitutional crisis. The Civil War had just ended. A large chunk of the nation was under military occupation. There was a new president who had very little power other than what was explicitly granted him in the Constitution, including the power to nominate judges, and there was a united--and radical--Congress opposing him. Finally, we had a Supreme Court whose most momentous decision to date, Dred Scott, had been a catalyst for the Civil War, highlighting how important judicial ideology was. These factors would lead Congress to decrease the number of justices each time a justice retired, denying Johnson the chance to appoint justices. The year Johnson left office and Ulysses Grant took over, 1869, Congress reset the number of justices at nine where it’s been ever since.

Of course, there was a fourth attempt to change the size of the judiciary for partisan or ideological reasons occurred in 1937, when the Lochner-era Supreme Court stymied the New Deal. Everyone listening probably knows about this from their history class, so there’s no need for detail. There are some myths about this time in history, but what is undisputably true is that one justice reversed himself on the issue of the New Deal’s constitutionality by the time the next case came before the Court and then a bunch of justices died or retired, letting FDR pack the court in the time-honored way, so the constitutional crisis withered away.

Tim: The size of the Court has fluctuated based on the Judiciary Act of 1789 (and its amendments). Last episode I talked about the blockade of the President’s nominee as revealing a bug in the system that has been covered over for centuries by good behavior and tradition. Rules dictate the process but these norms of the Senate hearing, debating and voting on nominees “are so longstanding and accepted that they have the status of formal rules — until one party decides to break them.” (hat tip to Paul Waldman in the WaPo for that). POTUS nominates, Senate considers and votes. With the Senate deviating and electing them out serving as the only solution is an imperfect solution. Elections every 6 years are a bad way to police this.

Lena: Precisely. Last time we changed the number of justices, there were 37 states. If this was EVER the argument, it could have occurred in February. And to really underscore what Adam said, it takes Congress to do something about changing the numbers. Or I guess I should say, that’s the way that our Constitution and history has had that happened. It’s rather cowardly to just let the number of justices dwindle over time because Senate leadership refuses to consider anyone to the Court. I mean, they way that Senate Republicans are getting things done is by not doing anything which then results in the withering and shutting down of things like our judiciary. This really isn’t acceptable.

What would a multi-year shorthanded court mean for SCOTUS in the short and long term?

Tim: It’s a disaster. The Court can’t maintain the workload shorthanded. The Court also cannot continue with ideological deadlocks that are caused by the GOP Senate’s blockade.

Lena: I don’t want to think about it. It minimizes the Court and possible will take a generation to restore and regain legitimacy, if it does. We need a ninth decisive vote.

Not surprised that I’m going to talk about how understaffed the federal judiciary is at all levels. 114 vacancies current (96) and known future (18), with 38 judicial emergencies.

Fun fact: there were 12 judicial emergencies in 2015 when Republicans took over the majority in the Senate.

Another fun fact: more than 11% of federal judiciary is vacant. At this time in President George W. Bush’s term in office, it was 4.3%.

So, everyone’s focused on SCOTUS - and I don’t discredit that. But our lower courts are also getting shut down. The next President will likely have well over 110 vacancies to fill on her first day. There are only 870 authorized judgeships. Justice at ALL levels is going to be compromised, delayed. This isn’t how our government is supposed to work.

The President needs to be able to nominate and appoint people.

Congress, and here the Senate, needs to take action.

And the Judiciary needs staffing. ASAP.

Adam: Sometimes finality is really necessary even if the final judgment is a horrendous miscarriage of justice. What if the Supreme Court had said about slavery/segregation/Japanese internment/school integration/abortion/marriage equality “gee, we dunno.”

If the Dems (hypothetically) take the Senate is there any scenario where they don’t go for the nuclear option if there is still an open seat after the next Congress comes to session?

Tim: Get out your geiger counters and lead-lined suits. Barring an unlikely reversal by GOP Senators, this goes nuclear and the politics get ugly. Maybe impeachment hearings for Chuck Schumer?

Lena: The only question is when. But only after there’s been even worse obstruction. Because, we’re gluttons?!

Whither Merrick Garland? After a bruising campaign do we foresee the Dems and GOP look to avoid immediate conflict and confirm him in the lame duck session, keeping the powder dry for the next opening?

Tim:

Evidence of maybe yes:

Former Cruz campaign manager Jeff Roe suggests the right would be pragmatic about confirming Garland (1947 podcast)

Pressure from the left to go more liberal and claim mandate from election

Pressure from the right to dig in and maintain “Scalia seat”

Aforementioned comments from Sen. Burr

If the Senate stays with the GOP, the GOP will undoubtedly claim it as a mandate from the people that it’s a check on a President HRC and use that as its reasoning to obstruct.

Lena:

I hope so. Serves most people’s best interests.

Rs aren’t united on this.

Levers - 1st Grassly, 2nd McConnell

Sen. Grassley has said holding a hearing is too expensive. But he’s bragging about other hearings he is going to hold.

Adam

Yes. I think the GOP would love to find a way out. I’m not sure that Republicans have that luxury. The forces of extremism coming from Fox, Limbaugh, Ann Coulter, etc that led to Trump are still there. Also, Boehner said, “that's enough. I'm out.” Maybe that happens in the Senate

Let’s cover the HRC thing next show… if it’s still relevant

HRC criteria for a SCOTUS Justice includes graduation from a “top 5 law school” - elitist or pragmatic? (cough cough elitist)

[Adam note: This was criteria selected by the writer, not by the Clinton campaign]

Tim: If this is a real thing, then I have one name: Thurgood Marshall. [If it’s not, let’s drop it from the rundown on the show]

Lena: Both? Definitely elitist. But I think it’s an interesting point to bring out for people.

If the GOP (hypothetically) retains the Senate is there any scenario where (hypothetical) President Clinton can get a nominee hearing and vote? Would this be more palatable if the Republican Senate at least held hearings or (!!) a vote on her potential nominees but telegraphed they’d be voted down each time?

Tim: I would love this to be about substance. If the GOP chooses to vote down HRC or BHO nominees on substance, so be it. But they strike me as being more politically craven or even worse cowardly. If the country *really* supports opposing these nominees, shouldn’t these Senators proudly to proclaim the reasons for their opposition using the forum of hearings and votes!? Clearly not.

Lena: Agree, substance would be lovely. Optimistically think they’ll have to do what they can to appear “reasonable” so maybe a few get through. But really… I think more has to be done procedurally to make sure any delays on nominees requires Senators to go to the floor to talk it out - actually say why they won’t return a blue slip, make Senators actually filibuster with words not the threat of it.

Adam: I think just like shutting down the government (the executive branch), eventually, this will become an issue of political survival. At a certain point, Clinton would make this a huge issue and would win if Republicans refused to hold a hearing or an up-or-down vote. “Vote them up or vote them down, but vote” has always been a popular message and the Senate will be forced to act. Republicans know, however, that once the process starts, the nominee becomes more popular (unless you’re Robert Bork), so I think that Republicans know that once they start holding hearings, they won’t be able to vote against nominee after nominee for a full 4 years

Adam: I’m going to let bygones be bygones about whether retirements should have already happened in 2014. Of course they need to happen now.

Tim: I’ve always thought Justices get to retire when they want to but now that we see the “normal rule” of President gets elected, gets to nominate an open seat and Senate holds a hearing and votes is seemingly no longer operable, so perhaps Justices need to be more strategic and mindful of when to end their time on the bench. I hate that should be the case now.

Lena: Depends on the President, of course, but I think there may be a few eyeing this.Chief Judge Garland’s languishing nomination may factor into their calculus.

Programming note… we’ll be back next Thursday after the election to read the tea leaves on initial post-election statements from the President-elect, the current President and key Senators as we start the lame duck session.

]]>01:14:10cleanAdvice & Consent 16: One Last Time for the debates and increased obstructionism in 2017?Fri, 21 Oct 2016 04:05:16 +0000In this episode we chat about our the SCOTUS action in the third presidential debates and explore the new forms of obstructionism on the horizon.

Also, some cracking… Senator Jeff Flake (R-Ariz.)said"If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck. That's what I'm encouraging my colleagues to do.”

The Third Debate has… a SCOTUS question!

What do you think of the SCOTUS question and the answers by the candidates? And did we call anything correctly on the last episode?

Lena:

I think my love of process was projected onto my expectations, which I hopefully hedged a bit. But the lack of substantive discussion about the fact that there’s ACTUALLY A VACANCY ON THE COURT is astounding. Anyone just dropping in to American politics at this point would have no idea from last night’s debate that we’re dealing with an actual real-live vacancy, let alone one that’s been lingering for more than 8 months. That’s ASTONISHING to me.

My prediction that 1 nominee will answer and another won’t seems right still, though actually I think because it was the first question and neither candidate was revved up just yet, there was more substance to the initial answer than I expected from Trump. He crossed off the list of things he needed to say: list, prolife, Scalia. Not sure why he had to throw RBG under the bus, but probably b/c that was the only want to make it about him.

I think I misread what Wallace would do in terms of framing. His question (below) would have satisfied me if he stopped after saying “where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted?” FULL STOP. I still would’ve had beef with perpetuating the notion that the Court leads the country in where we go, but think it’s open ended enough. And then I wish he would’ve asked what’s to be done about this ACTUAL vacancy we have. How would the candidate work with the Senate whose role is to provide advice and consent when that process has imploded? Instead he goes on to create a false dichotomy in constitutional interpretation: “Do the founders' words mean what they say or is it a living document to be applied flexibly according to changing circumstances?” On it’s face, the two aspects aren’t mutually exclusive, but this whole originalism vs. living document thing isn’t a great framework. It’s dated and really to me showed a lack of understanding about the Court and how to best get the candidates talking about SCOTUS.

Pleased Clinton mentioned the current vacancy - and alluded to Advice and Consent and Senate obstruction. But I think she could’ve done more to spell out how absurd it is, meanwhile helping the downticket Senate candidates.

A little disappointed the Court conversation turned to guns and abortion. I think those 2 topics warranted time, for sure, but wish it wasn’t only in this bucket of the Court since there’s SO MUCH at stake and so much else that could have been discussed. It ended up sounding more policy-based than court-based. Though it really delineated the candidates in terms of who understood the courts and how didn’t. Pretty sure Trump doesn’t understand how courts work. Or that maybe those judges on his list who he claims will do what he wants them to do wouldn’t appreciate that assumption.

Secretary Clinton, Mr. Trump, welcome. Let's get right to it. The first topic is the Supreme Court.

You both talked briefly about the court in the last debate, but I want to drill down on this, because the next president will almost certainly have at least one appointment and likely or possibly two or three appointments.

WALLACE: Which means that you will, in effect, determine the balance of the court for what could be the next quarter century.

First of all, where do you want to see the court take the country? And secondly, what's your view on how the Constitution should be interpreted? Do the founders' words mean what they say or is it a living document to be applied flexibly according to changing circumstances? In this segment, Secretary Clinton, you go first. You have two minutes.

CLINTON: Thank you very much, Chris. And thanks to UNLV for hosting us.

You know, I think when we talk about the Supreme Court, it really raises the central issue in this election, namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have?

And I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy. For me, that means that we need a Supreme Court that will stand up on behalf of women's rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.

I have major disagreements with my opponent about these issues and others that will be before the Supreme Court. But I feel that at this point in our country's history, it is important that we not reverse marriage equality, thatwe not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace, that we stand up and basically say: The Supreme Court should represent all of us.

That's how I see the court, and the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans.

And I look forward to having that opportunity.I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them. That's the way the Constitution fundamentally should operate. The president nominates, and then the Senate advises and consents, or not, but they go forward with the process.

WALLACE: Secretary Clinton, thank you.

WALLACE: Mr. Trump, same question. Where do you want to see the court take the country? And how do you believe the Constitution should be interpreted?

TRUMP: Well, first of all, it's great to be with you, and thank you, everybody. The Supreme Court: It's what it's all about. Our country is so, so --it's just so imperative that we have the right justices.

Something happened recently whereJustice Ginsburg made some very, very inappropriate statements toward me and toward a tremendous number of people, many, many millions of people that I represent.And she was forced to apologize. And apologize she did. But these were statements that should never, ever have been made.

We need a Supreme Court that in my opinion is going to uphold the Second Amendment, and all amendments, but the Second Amendment, which is under absolute siege. I believe if my opponent should win this race, which I truly don't think will happen, we will have a Second Amendment which will be a very, very small replica of what it is right now. But I feel that it's absolutely important that we uphold, because of the fact that it is under such trauma.

I feel that the justices that I am going to appoint -- and I've named 20 of them -- the justices that I'm going to appoint will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they're people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted. And I believe that's very, very important.

I don't think we should have justices appointed that decide what they want to hear.It's all about the Constitution of -- of -- and so important, the Constitution the way it was meant to be. And those are the people that I will appoint.

WALLACE: Mr. Trump, thank you.

WALLACE: We now have about 10 minutes for an open discussion. I want to focus on two issues that, in fact, by the justices that you name could end up changing the existing law of the land. First is one that you mentioned, Mr. Trump, and that isguns.

Secretary Clinton, you said last year, let me quote, "The Supreme Court is wrong on the Second Amendment." And now, in fact, in the 2008 Heller case, the court ruled that there is a constitutional right to bear arms, but a right that is reasonably limited. Those were the words of the Judge Antonin Scalia who wrote the decision. What's wrong with that?

CLINTON: Well, first of all, I support the Second Amendment. I lived in Arkansas for 18 wonderful years. I represented upstate New York. I understand and respect the tradition of gun ownership. It goes back to the founding of our country.

But I also believe that there can be and must be reasonable regulation. Because I support the Second Amendment doesn't mean that I want people who shouldn't have guns to be able to threaten you, kill you or members of your family.

And so when I think about what we need to do, we have 33,000 people a year who die from guns. I think we need comprehensive background checks, need to close the online loophole, close the gun show loophole. There's other matters that I think are sensible that are the kind of reforms that would make a difference that are not in any way conflicting with the Second Amendment.

You mentioned the Heller decision. And what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the Second Amendment in that case, because what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them. And the court didn't accept that reasonable regulation, but they've accepted many others. So I see no conflict between saving people's lives and defending the Second Amendment.

WALLACE: Let me bring Mr. Trump in here. The bipartisan Open Debate Coalition got millions of votes on questions to ask here, and this was, in fact, one of the top questions that they got. How will you ensure the Second Amendment is protected? You just heard Secretary Clinton's answer. Does she persuade you that, while you may disagree on regulation, that, in fact, she supports a Second Amendment right to bear arms? TRUMP:Well, the D.C. vs. Heller decision was very strongly -- and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld. And Justice Scalia was so involved. And it was a well-crafted decision. But Hillary was extremely upset, extremely angry. And people that believe in the Second Amendment and believe in it very strongly were very upset with what she had to say.

CLINTON: Well, I was upset because, unfortunately, dozens of toddlers injure themselves, even kill people with guns, because, unfortunately, not everyone who has loaded guns in their homes takes appropriate precautions.

But there's no doubt that I respect the Second Amendment, that I also believe there's an individual right to bear arms. That is not in conflict with sensible, commonsense regulation.

And, you know, look, I understand that Donald's been strongly supported by the NRA. The gun lobby's on his side. They're running millions of dollars of ads against me. And I regret that, because what I would like to see is for people to come together and say: Of course we're going to protect and defend the Second Amendment. But we're going to do it in a way that tries to save some of these 33,000 lives that we lose every year.

WALLACE: Let me bring Mr. Trump back into this, because, in fact, you oppose any limits on assault weapons, any limits on high- capacity magazines. You support a national right to carry law. Why, sir?

TRUMP: Well, let me just tell you before we go any further. In Chicago, which has the toughest gun laws in the United States, probably you could say by far, they have more gun violence than any other city. So we have the toughest laws, and you have tremendous gun violence.

I am a very strong supporter of the Second Amendment. And I am -- I don't know if Hillary was saying it in a sarcastic manner, but I'm very proud to have the endorsement of the NRA. And it's the earliest endorsement they've ever given to anybody who ran for president. So I'm very honored by all of that.

We are going to appoint justices -- this is the best way to help the Second Amendment. We are going to appoint justices that will feel very strongly about the Second Amendment, that will not do damage to the Second Amendment.

WALLACE: Well, let's pick up on another issue which divides you and the justices that whoever ends up winning this election appoints could have a dramatic effect there, and that's the issue ofabortion.

TRUMP: Right.

WALLACE: Mr. Trump, you're pro-life. But I want to ask you specifically:Do you want the court, including the justices that you will name, to overturn Roe v. Wade, which includes -- in fact, states -- a woman's right to abortion?

TRUMP: Well, if that would happen, because I am pro-life, and Iwill be appointing pro-life judges, I would think that that will go back to the individual states.

WALLACE: But I'm asking you specifically. Would you like to...

TRUMP: If they overturned it, it will go back to the states.

WALLACE: But what I'm asking you, sir, is, do you want to see the court overturn -- you just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

TRUMP:Well, if we put another two or perhaps three justice on, that's really what's going to be -- that will happen. And that'll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.

WALLACE: Secretary Clinton?

CLINTON: Well,I strongly support Roe v. Wade, which guarantees a constitutional right to a woman to make the most intimate, most difficult, in many cases, decisions about her health care that one can imagine. And in this case, it's not only about Roe v. Wade. It is about what's happening right now in America.

So many states are putting very stringent regulations on women that block them from exercising that choice to the extent that they are defunding Planned Parenthood, which, of course, provides all kinds of cancer screenings and other benefits for women in our country.

Donald has said he's in favor of defunding Planned Parenthood. He even supported shutting the government down to defund Planned Parenthood. I will defend Planned Parenthood.I will defend Roe v. Wade, and I will defend women's rights to make their own health care decisions.

WALLACE: Secretary Clinton... CLINTON: And we have come too far to have that turned back now. And, indeed, he said women should be punished, that there should be some form of punishment for women who obtain abortions. And I could just not be more opposed to that kind of thinking.

WALLACE: I'm going to give you a chance to respond, but I want to ask you, Secretary Clinton, I want to explore how far you believe the right to abortion goes. You have been quoted as saying that the fetus has no constitutional rights. You also voted against a ban on late-term, partial-birth abortions. Why?

CLINTON: Because Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account. And when I voted as a senator, I did not think that that was the case.

The kinds of cases that fall at the end of pregnancy are often the most heartbreaking, painful decisions for families to make.I have met with women who toward the end of their pregnancy get the worst news one could get, that their health is in jeopardy if they continue to carry to term or that something terrible has happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions. So you can regulate if you are doing so with the life and the health of the mother taken into account.

TRUMP:Well, I think it's terrible.If you go with what Hillary is saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby.

Now, you can say that that's OK and Hillary can say that that's OK. But it's not OK with me, because based on what she's saying, and based on where she's going, and where she's been, you can take the baby and rip the baby out of the womb in the ninth month on the final day. And that's not acceptable.

CLINTON: Well, that is not what happens in these cases. And using that kind of scare rhetoric is just terribly unfortunate. You should meet with some of the women that I have met with, women I have known over the course of my life. This is one of the worst possible choices that any woman and her family has to make. And I do not believe the government should be making it.

You know, I've had the great honor of traveling across the world on behalf of our country. I've been to countries where governments either forced women to have abortions, like they used to do in China, or forced women to bear children, like they used to do in Romania. And I can tell you: The government has no business in the decisions that women make with their families in accordance with their faith, with medical advice. And I will stand up for that right.

WALLACE: All right. But just briefly, I want to move on to another segment...

TRUMP: And, honestly, nobody has business doing what I just said, doing that, as late as one or two or three or four days prior to birth. Nobody has that.

Adam:

1) I wrongly predicted that Wallace would play it straight. Asking about judges who interpret the Constitution “so the Framers words mean what they say” as a way to describe the Republican ideal judge is a description straight from RNC focus groups on what language works best. Republicans used to say “strict constructionist” to describe what they wanted (here’s the Poppy Bush WH using the termhttps://books.google.com/books?id=SQxqXLSy9wcC&pg=PA99&lpg=PA99&dq=strom+thurmond+strict+construction&source=bl&ots=te4wQLK4Y8&sig=GVvXbuM0AVgzjUAcso3tqzivm94&hl=en&sa=X&ved=0ahUKEwiy-aenuOnPAhUE6CYKHVr6Dik4ChDoAQgsMAM#v=onepage&q=strom%20thurmond%20strict%20construction&f=false), but that didn’t poll well, so they decided to wrap up their preferred type of judge in terms of what the Framers wanted just like Wallace did. Because of the conservatives’ hitting on the message of interpreting the Constitution according to the original intent of the Constitution, many leading liberal legal intellectuals, such as Jack Balkin, the Amar brothers, Elena Kagan, and the late Doug Kendall have invested a lot of time in trying to prove that the original intent of the Framers leads to liberal results. And their research has shown that the idea that it’s not at all clear that there’s a huge difference between the way the Framers meant the Constitution to be interpreted and the current way liberal legal scholars and judges interpret the Constitution.

2) Tim was right that Wallace didn’t have deep enough knowledge to ask real follow-ups. Granted, it was pretty clear that if Wallace had pushed Trump on legal issues, he would have likely just passed. So I want to highlight a more interesting chance to follow-up. If Wallace had said, “You frame your opposition toHellerin terms of toddlers shooting people. But Secretary Clinton, the District of Columbia gun law that was overthrown inHellerwas in reality a complete ban on owning a handgun. Even if an intruder came into the house, it was illegal for a person in the house to put the gun together to defend herself. If you don’t think the Second Amendment makes such laws unconstitutional, what laws would be unconstitutional under the Second Amendment?” Sure glad Wallace wasn’t prepared enough to ask something like that.

3) I was right that Hillary would get off the subject quickly. Sad trombone for lack of mention of Merrick Garland or the unprecedented refusal to even hold a hearing on his nomination. Sad trombone for less than a full sentence forCitizens United. Sad trombone for not using the opportunity to mention the Supreme Court thwarting climate change. Sad trombone for three debates and no mention of the corporate court.

The Donald cares very little about the Court, but knows it matters to the small group of remaining people that would consider voting for him. So he memorizes for a SCOTUS question like I memorized for the Commercial Paper section of the Oregon State Bar exam (I managed to skip enrolling in that snoozer of a class in law school)… mention a bunch of hotwords to get the graders’ attention and hope the “fake it til you make it” technique works. For Trump -- as Lena noted -- the words were Scalia, Constitution, “Partial Birth Abortion” and Second Amendment. I would be shocked if he knew anything beyond that, unlike my vast and complex understanding of Oregon commercial paper law.

The opening question was a softball like I thought it would be. I’m in agreement with Adam… I think we can quibble with the framing for sure (“do the founders words mean what they say” vs. “flexible” wasn't exactly right down the middle there Chris).

HRC’s answer was thoughtful and thorough. The Donald's answer was thin and (probably) rotely memorized from a memo written by someone who actually cares about and understands SCOTUS and American jurisprudence. It’s more obvious than ever that The Donald doesn't understand or frankly care that much about the topic except he knows it matters to people he has to please.

Pivoting to abortion and guns made this feel a little underwhelming but at least (a) actual case law other than Roe was mentioned (who had Heller in the pool??) and (b) this is sadly about as good as it gets in a general election debate.

Last but not least, The Donald’s failure to clearly and unequivocally declare support for the election outcome is terrifying. Shades of “John Marshall has made his decision, now let him enforce it.” So much of what our system is built on relies on these bedrock concepts of respect for institutions and structureeven and especially when you lose. It’s a logical extension of the mindset where you make shit up to not consider a duly nominated Justice as we’ll be learning more about in THE OTHER DEBATE from last night (segue!)

The OTHER Debate on Wednesday…. Chair of the Senate Judiciary Committee, Chuck Grassley, and Patty Judge discuss SCOTUS

Moderator: The first question focuses on the nomination of Judge Merrick Garland to the Supreme Court. Senator Grassley since Judge Garland's nomination you have opposed convening confirmation hearings. Just last month though you said you would consider hearings during a lame duck session after election day. Why sir soften your stance?

Grassley:I will not change my position from my February 23rd letter that the people ought to have a voice and the new President whether it's Trump or Ms. Clinton will make the next appointment as far as I'm concerned. The reason we did not have a hearing and 52 other Senators agreeing with that, we have taken the position similar to what Democratic senators have taken when there's been Republican Presidents, three different ones, and the point that they made in the last year of a Presidential term if a vacancy happens then people have a choice and let the new President make it. So you can't have one rule for Democratic Presidents and another rule for Republican Presidents so we're being very consistent.

Moderator: To be specific the 52 Senators that you mentioned if they change their minds and favored confirmation hearings during a lame duck session not to say that you support it, but would you consider it?

Grassley:If a majority of the Senate said that they were going to move ahead, a chairman serves at the majority of the Senate of the United States, and I would follow the majority of the Senate. I don't expect that to happen though.

Moderator: As consistently as Senator Grassley has opposed the confirmation hearings, you advocated for them, I want to take you back to June of 1992 as a U.S Senator Vice President Joe Biden talked hypothetically about postponing those hearings on a Supreme Court vacancy, should be there one, until after the election of that day in November of 1992. Given your advocacy for hearings about Judge Garland's nomination do you then believe the Vice President of the United States, as one the leaders of your party, was wrong 26 years ago?

Judge: Well I believe we now have the longest time in the history of this country between a nomination and a hearing and that is unprecedented. I believe that it is hampering the court, we have a court that is not able to function as it was designed by the Constitution. We have disrupted the balance of power, whatever Joe Biden said in the halls on Congress at some time, if that is in fact is his view, that is not my view.I believe that the duty of the Judiciary Committee is to have a hearing and my opponent is refusing to do that. It should be done and I am really tonight troubled that his answer about a lame duck session. It concerns me that he is leaving himself some wiggle room so that they can have a hearing for Judge Garland between the time this election over and Hillary Clinton takes office.

Grassley: In 1968 there was a vacancy, the Democratic Senate decided not to fill the vacancy. they presumably though that Humphrey was going to be elected, Humphrey wasn't elected, Nixon was elected, Nixon appointed two new people to the Supreme Court. So consequently even in 2007 Schumer said 18 months ahead of time if there's a vacancy it should be filled by the new one. Then in 2005, Reid gave a speech in which he said there's nothing in the Constitution that says the Senate has to move ahead. That's the checks and balances of our government.

Moderator: Ms Judge he seems to cite precedent, three that I can hear, what's your response?

Judge: My response is that this is wrong. This is obstruction of the process, we have a Supreme Court that is unable to function, this is exactly what's wrong with Washington. This is why people are angry. Because instead of getting to work, doing what should be done, they are playing political games in Washington DC and it has to stop.

Grassley: There's nothing wrong with thechecks and balancesin our Constitution. The President nominates, the Senate confirms. Or advises and consents. Or not to consent as they choose to do based upon what Senator Reid, the Democratic leader said in 2005.

Judge: You know we can talk about what somebody said but the truth of the matter is we have not had a functioning court in months, we will not have a functioning court for many more months. That is wrong. That is political games whether it's being played by the Republicans or Democrats it is wrong and it needs to stop.

Tim:This rule-changing on the fly is straight-up Orwellian. I wish the Republicans would just be sincere with everyone and say what they’re trying to do… pack the Court. For a party obsessed with promoting original intent and fidelity to The Framers, this is hypocrisy of the highest order.

Adam:The lie about 1968 shows just how unmoored the argument against holding a hearing is. First of all, what Grassley is talking about is a filibuster of the Fortas nomination. The only way Fortas could be filibustered is if the Judiciary Committee Chairman agreed to hold a hearing and a committee vote, which is what happened with Fortas. Secondly, why would Democrats deep-six a Democratic nominee on the hope that another Democrat would win the White House. That would be just about the dumbest political strategy in history. And of course that’s not what happened. A majority of Senate Democrats voted to end the filibuster against Fortas and a majority of Republicans voted to continue it. And of course, all the Democrats to vote against the Fortas nomination came from Dixiecrats except for border state Senator Robert Byrdhttps://library.cqpress.com/cqalmanac/document.php?id=cqal68-1284316.

I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you.(CNN)

Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score the good Senator’s scenario? Will the GOP actually put up a united front against President Clinton’s nominee?

Adam:The combination of the treatment of the Garland nomination and the Trump nomination makes me think that I have no idea what the outer boundaries of acceptable political actions are any more. That said, 10 if GOP retains the Senate. 1 if they do not. They do not confirm anyone unless the West Wing scenario comes true and they can place a conservative in Scalia’s seat in return for a liberal in another seat.

A friend (Dave Saldana) said to me that a law prof he admires, NomiStolzenberg, describesthe Senate filibuster as political Lochnerism--a countermajoritarian method to keep the elected branches from fulfilling their duty to represent the people. This brings up interesting issues that probably go beyond the scope of this podcast. But briefly, Lochner is a case in which the U.S. Supreme Court struck down a New York State maximum hour law based on an implied right in the Constitution of freedom of contract. But the term Lochnerism encompasses a number of different strategies the Court used to strike down turn-of-the-century laws to reform the gilded age economy, including the Commerce Clause, the Takings Clause, the Nondelegation Doctrine, the Contracts Clause, and others. It is true that the Founders set up both the Supreme Court and the Senate to be checks on the impulses of the majority. But there must be a line at which the majority will is so thwarted that the government overall loses its ability to say that it has the consent of the governed (gerrymandering is yet another issue that could fit into this discussion). So, to keep within the bounds of the podcast, the Supreme Court faced this question in the 30s and triggered a real constitutional crisis but found a way to step back from the precipice. If the Senate remains in Republican hands, it looks like Republicans are getting closer and closer to triggering another constitutional crisis.

Lena:

McCain pulled the curtain back. Revealed the grand plan all along and it’s a nightmare. Now, I’m delighted in some ways that this has been exposed for exactly what it is. I’m more surprised it was McCain who made the misstep of actually saying it outloud. I’ve tried to play this out a bit so bear with me. In pulling back the curtain, we see McConnell as the Wizard, but probably the Scarecrow is maybe Grassley for following along without questions, then Toomey for lacking courage, and McCain for the lack of heart.

That said, i think the Rs think this is their only tactic and even if they maintain a majority in the Senate will need to appear like they’re friendly/getting stuff done. I’m pretty sure I’m then calling this a 5 because part of me is optimistic that things can’t get worse. The other part of me is realistic enough to know that it’s quite possible we haven’t yet hit the bottom. But this constitutional crisis - where 1) rule of law isn’t respected, 2) institutions like Senate procedure, tradition isn’t respected, 3) 1 branch shuts down another branch, and 4) judiciary just isn’t being staffed (from SCOTUS on down) is really really scary. We need to really inform people that this isn’t politics as usual. This isn’t some sort of eye-for-an-eye maneuver. This is a takedown of the functioning of our gov’t which ultimately will further hurt the Court’s and gov’t’s credibility.

Dan:

Tim: 9/10 - I think the Senator is right… the Republicans will continue to behave as if “the Scalia seat” is theirs by divine right and they will continue to create new reasons out of whole cloth to stand in the way of confirming a duly elected President’s nominee for a replacement. The only question I have is whether they’ll change strategy. I don’t think they can stonewall the next President’s nominees without a hearing (right???) so then they have to pay the political price of just rejecting every nominee on “substance” each time. I expect a lot of foot dragging and delay under this scenario. No Justice seated in the next Congress… at all... if there’s a GOP Senate.

]]>In this episode we chat about our the SCOTUS action in the third presidential debates and explore the new forms of obstructionism on the horizon.

Also, some cracking… Senator Jeff Flake (R-Ariz.) said "If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck. That's what I'm encouraging my colleagues to do.”

The Third Debate has… a SCOTUS question!

What do you think of the SCOTUS question and the answers by the candidates? And did we call anything correctly on the last episode?

Lena:

I think my love of process was projected onto my expectations, which I hopefully hedged a bit. But the lack of substantive discussion about the fact that there’s ACTUALLY A VACANCY ON THE COURT is astounding. Anyone just dropping in to American politics at this point would have no idea from last night’s debate that we’re dealing with an actual real-live vacancy, let alone one that’s been lingering for more than 8 months. That’s ASTONISHING to me.

My prediction that 1 nominee will answer and another won’t seems right still, though actually I think because it was the first question and neither candidate was revved up just yet, there was more substance to the initial answer than I expected from Trump. He crossed off the list of things he needed to say: list, prolife, Scalia. Not sure why he had to throw RBG under the bus, but probably b/c that was the only want to make it about him.

I think I misread what Wallace would do in terms of framing. His question (below) would have satisfied me if he stopped after saying “where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted?” FULL STOP. I still would’ve had beef with perpetuating the notion that the Court leads the country in where we go, but think it’s open ended enough. And then I wish he would’ve asked what’s to be done about this ACTUAL vacancy we have. How would the candidate work with the Senate whose role is to provide advice and consent when that process has imploded? Instead he goes on to create a false dichotomy in constitutional interpretation: “Do the founders' words mean what they say or is it a living document to be applied flexibly according to changing circumstances?” On it’s face, the two aspects aren’t mutually exclusive, but this whole originalism vs. living document thing isn’t a great framework. It’s dated and really to me showed a lack of understanding about the Court and how to best get the candidates talking about SCOTUS.

Pleased Clinton mentioned the current vacancy - and alluded to Advice and Consent and Senate obstruction. But I think she could’ve done more to spell out how absurd it is, meanwhile helping the downticket Senate candidates.

A little disappointed the Court conversation turned to guns and abortion. I think those 2 topics warranted time, for sure, but wish it wasn’t only in this bucket of the Court since there’s SO MUCH at stake and so much else that could have been discussed. It ended up sounding more policy-based than court-based. Though it really delineated the candidates in terms of who understood the courts and how didn’t. Pretty sure Trump doesn’t understand how courts work. Or that maybe those judges on his list who he claims will do what he wants them to do wouldn’t appreciate that assumption.

Secretary Clinton, Mr. Trump, welcome. Let's get right to it. The first topic is the Supreme Court.

You both talked briefly about the court in the last debate, but I want to drill down on this, because the next president will almost certainly have at least one appointment and likely or possibly two or three appointments.

WALLACE: Which means that you will, in effect, determine the balance of the court for what could be the next quarter century.

First of all, where do you want to see the court take the country? And secondly, what's your view on how the Constitution should be interpreted? Do the founders' words mean what they say or is it a living document to be applied flexibly according to changing circumstances? In this segment, Secretary Clinton, you go first. You have two minutes.

CLINTON: Thank you very much, Chris. And thanks to UNLV for hosting us.

You know, I think when we talk about the Supreme Court, it really raises the central issue in this election, namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have?

And I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy. For me, that means that we need a Supreme Court that will stand up on behalf of women's rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.

I have major disagreements with my opponent about these issues and others that will be before the Supreme Court. But I feel that at this point in our country's history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace, that we stand up and basically say: The Supreme Court should represent all of us.

That's how I see the court, and the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans.

And I look forward to having that opportunity. I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them. That's the way the Constitution fundamentally should operate. The president nominates, and then the Senate advises and consents, or not, but they go forward with the process.

WALLACE: Secretary Clinton, thank you.

WALLACE: Mr. Trump, same question. Where do you want to see the court take the country? And how do you believe the Constitution should be interpreted?

TRUMP: Well, first of all, it's great to be with you, and thank you, everybody. The Supreme Court: It's what it's all about. Our country is so, so -- it's just so imperative that we have the right justices.

Something happened recently where Justice Ginsburg made some very, very inappropriate statements toward me and toward a tremendous number of people, many, many millions of people that I represent. And she was forced to apologize. And apologize she did. But these were statements that should never, ever have been made.

We need a Supreme Court that in my opinion is going to uphold the Second Amendment, and all amendments, but the Second Amendment, which is under absolute siege. I believe if my opponent should win this race, which I truly don't think will happen, we will have a Second Amendment which will be a very, very small replica of what it is right now. But I feel that it's absolutely important that we uphold, because of the fact that it is under such trauma.

I feel that the justices that I am going to appoint -- and I've named 20 of them -- the justices that I'm going to appoint will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they're people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted. And I believe that's very, very important.

I don't think we should have justices appointed that decide what they want to hear. It's all about the Constitution of -- of -- and so important, the Constitution the way it was meant to be. And those are the people that I will appoint.

WALLACE: Mr. Trump, thank you.

WALLACE: We now have about 10 minutes for an open discussion. I want to focus on two issues that, in fact, by the justices that you name could end up changing the existing law of the land. First is one that you mentioned, Mr. Trump, and that is guns.

Secretary Clinton, you said last year, let me quote, "The Supreme Court is wrong on the Second Amendment." And now, in fact, in the 2008 Heller case, the court ruled that there is a constitutional right to bear arms, but a right that is reasonably limited. Those were the words of the Judge Antonin Scalia who wrote the decision. What's wrong with that?

CLINTON: Well, first of all, I support the Second Amendment. I lived in Arkansas for 18 wonderful years. I represented upstate New York. I understand and respect the tradition of gun ownership. It goes back to the founding of our country.

But I also believe that there can be and must be reasonable regulation. Because I support the Second Amendment doesn't mean that I want people who shouldn't have guns to be able to threaten you, kill you or members of your family.

And so when I think about what we need to do, we have 33,000 people a year who die from guns. I think we need comprehensive background checks, need to close the online loophole, close the gun show loophole. There's other matters that I think are sensible that are the kind of reforms that would make a difference that are not in any way conflicting with the Second Amendment.

You mentioned the Heller decision. And what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the Second Amendment in that case, because what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them. And the court didn't accept that reasonable regulation, but they've accepted many others. So I see no conflict between saving people's lives and defending the Second Amendment.

WALLACE: Let me bring Mr. Trump in here. The bipartisan Open Debate Coalition got millions of votes on questions to ask here, and this was, in fact, one of the top questions that they got. How will you ensure the Second Amendment is protected? You just heard Secretary Clinton's answer. Does she persuade you that, while you may disagree on regulation, that, in fact, she supports a Second Amendment right to bear arms? TRUMP: Well, the D.C. vs. Heller decision was very strongly -- and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld. And Justice Scalia was so involved. And it was a well-crafted decision. But Hillary was extremely upset, extremely angry. And people that believe in the Second Amendment and believe in it very strongly were very upset with what she had to say.

CLINTON: Well, I was upset because, unfortunately, dozens of toddlers injure themselves, even kill people with guns, because, unfortunately, not everyone who has loaded guns in their homes takes appropriate precautions.

But there's no doubt that I respect the Second Amendment, that I also believe there's an individual right to bear arms. That is not in conflict with sensible, commonsense regulation.

And, you know, look, I understand that Donald's been strongly supported by the NRA. The gun lobby's on his side. They're running millions of dollars of ads against me. And I regret that, because what I would like to see is for people to come together and say: Of course we're going to protect and defend the Second Amendment. But we're going to do it in a way that tries to save some of these 33,000 lives that we lose every year.

WALLACE: Let me bring Mr. Trump back into this, because, in fact, you oppose any limits on assault weapons, any limits on high- capacity magazines. You support a national right to carry law. Why, sir?

TRUMP: Well, let me just tell you before we go any further. In Chicago, which has the toughest gun laws in the United States, probably you could say by far, they have more gun violence than any other city. So we have the toughest laws, and you have tremendous gun violence.

I am a very strong supporter of the Second Amendment. And I am -- I don't know if Hillary was saying it in a sarcastic manner, but I'm very proud to have the endorsement of the NRA. And it's the earliest endorsement they've ever given to anybody who ran for president. So I'm very honored by all of that.

We are going to appoint justices -- this is the best way to help the Second Amendment. We are going to appoint justices that will feel very strongly about the Second Amendment, that will not do damage to the Second Amendment.

WALLACE: Well, let's pick up on another issue which divides you and the justices that whoever ends up winning this election appoints could have a dramatic effect there, and that's the issue of abortion.

TRUMP: Right.

WALLACE: Mr. Trump, you're pro-life. But I want to ask you specifically: Do you want the court, including the justices that you will name, to overturn Roe v. Wade, which includes -- in fact, states -- a woman's right to abortion?

TRUMP: Well, if that would happen, because I am pro-life, and I will be appointing pro-life judges, I would think that that will go back to the individual states.

WALLACE: But I'm asking you specifically. Would you like to...

TRUMP: If they overturned it, it will go back to the states.

WALLACE: But what I'm asking you, sir, is, do you want to see the court overturn -- you just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

TRUMP: Well, if we put another two or perhaps three justice on, that's really what's going to be -- that will happen. And that'll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.

WALLACE: Secretary Clinton?

CLINTON: Well, I strongly support Roe v. Wade, which guarantees a constitutional right to a woman to make the most intimate, most difficult, in many cases, decisions about her health care that one can imagine. And in this case, it's not only about Roe v. Wade. It is about what's happening right now in America.

So many states are putting very stringent regulations on women that block them from exercising that choice to the extent that they are defunding Planned Parenthood, which, of course, provides all kinds of cancer screenings and other benefits for women in our country.

Donald has said he's in favor of defunding Planned Parenthood. He even supported shutting the government down to defund Planned Parenthood. I will defend Planned Parenthood. I will defend Roe v. Wade, and I will defend women's rights to make their own health care decisions.

WALLACE: Secretary Clinton... CLINTON: And we have come too far to have that turned back now. And, indeed, he said women should be punished, that there should be some form of punishment for women who obtain abortions. And I could just not be more opposed to that kind of thinking.

WALLACE: I'm going to give you a chance to respond, but I want to ask you, Secretary Clinton, I want to explore how far you believe the right to abortion goes. You have been quoted as saying that the fetus has no constitutional rights. You also voted against a ban on late-term, partial-birth abortions. Why?

CLINTON: Because Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account. And when I voted as a senator, I did not think that that was the case.

The kinds of cases that fall at the end of pregnancy are often the most heartbreaking, painful decisions for families to make. I have met with women who toward the end of their pregnancy get the worst news one could get, that their health is in jeopardy if they continue to carry to term or that something terrible has happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions. So you can regulate if you are doing so with the life and the health of the mother taken into account.

TRUMP: Well, I think it's terrible. If you go with what Hillary is saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby.

Now, you can say that that's OK and Hillary can say that that's OK. But it's not OK with me, because based on what she's saying, and based on where she's going, and where she's been, you can take the baby and rip the baby out of the womb in the ninth month on the final day. And that's not acceptable.

CLINTON: Well, that is not what happens in these cases. And using that kind of scare rhetoric is just terribly unfortunate. You should meet with some of the women that I have met with, women I have known over the course of my life. This is one of the worst possible choices that any woman and her family has to make. And I do not believe the government should be making it.

You know, I've had the great honor of traveling across the world on behalf of our country. I've been to countries where governments either forced women to have abortions, like they used to do in China, or forced women to bear children, like they used to do in Romania. And I can tell you: The government has no business in the decisions that women make with their families in accordance with their faith, with medical advice. And I will stand up for that right.

WALLACE: All right. But just briefly, I want to move on to another segment...

TRUMP: And, honestly, nobody has business doing what I just said, doing that, as late as one or two or three or four days prior to birth. Nobody has that.

Adam:

1) I wrongly predicted that Wallace would play it straight. Asking about judges who interpret the Constitution “so the Framers words mean what they say” as a way to describe the Republican ideal judge is a description straight from RNC focus groups on what language works best. Republicans used to say “strict constructionist” to describe what they wanted (here’s the Poppy Bush WH using the term https://books.google.com/books?id=SQxqXLSy9wcC&pg=PA99&lpg=PA99&dq=strom+thurmond+strict+construction&source=bl&ots=te4wQLK4Y8&sig=GVvXbuM0AVgzjUAcso3tqzivm94&hl=en&sa=X&ved=0ahUKEwiy-aenuOnPAhUE6CYKHVr6Dik4ChDoAQgsMAM#v=onepage&q=strom%20thurmond%20strict%20construction&f=false), but that didn’t poll well, so they decided to wrap up their preferred type of judge in terms of what the Framers wanted just like Wallace did. Because of the conservatives’ hitting on the message of interpreting the Constitution according to the original intent of the Constitution, many leading liberal legal intellectuals, such as Jack Balkin, the Amar brothers, Elena Kagan, and the late Doug Kendall have invested a lot of time in trying to prove that the original intent of the Framers leads to liberal results. And their research has shown that the idea that it’s not at all clear that there’s a huge difference between the way the Framers meant the Constitution to be interpreted and the current way liberal legal scholars and judges interpret the Constitution.

2) Tim was right that Wallace didn’t have deep enough knowledge to ask real follow-ups. Granted, it was pretty clear that if Wallace had pushed Trump on legal issues, he would have likely just passed. So I want to highlight a more interesting chance to follow-up. If Wallace had said, “You frame your opposition to Heller in terms of toddlers shooting people. But Secretary Clinton, the District of Columbia gun law that was overthrown in Heller was in reality a complete ban on owning a handgun. Even if an intruder came into the house, it was illegal for a person in the house to put the gun together to defend herself. If you don’t think the Second Amendment makes such laws unconstitutional, what laws would be unconstitutional under the Second Amendment?” Sure glad Wallace wasn’t prepared enough to ask something like that.

3) I was right that Hillary would get off the subject quickly. Sad trombone for lack of mention of Merrick Garland or the unprecedented refusal to even hold a hearing on his nomination. Sad trombone for less than a full sentence for Citizens United. Sad trombone for not using the opportunity to mention the Supreme Court thwarting climate change. Sad trombone for three debates and no mention of the corporate court.

The Donald cares very little about the Court, but knows it matters to the small group of remaining people that would consider voting for him. So he memorizes for a SCOTUS question like I memorized for the Commercial Paper section of the Oregon State Bar exam (I managed to skip enrolling in that snoozer of a class in law school)… mention a bunch of hotwords to get the graders’ attention and hope the “fake it til you make it” technique works. For Trump -- as Lena noted -- the words were Scalia, Constitution, “Partial Birth Abortion” and Second Amendment. I would be shocked if he knew anything beyond that, unlike my vast and complex understanding of Oregon commercial paper law.

The opening question was a softball like I thought it would be. I’m in agreement with Adam… I think we can quibble with the framing for sure (“do the founders words mean what they say” vs. “flexible” wasn't exactly right down the middle there Chris).

HRC’s answer was thoughtful and thorough. The Donald's answer was thin and (probably) rotely memorized from a memo written by someone who actually cares about and understands SCOTUS and American jurisprudence. It’s more obvious than ever that The Donald doesn't understand or frankly care that much about the topic except he knows it matters to people he has to please.

Pivoting to abortion and guns made this feel a little underwhelming but at least (a) actual case law other than Roe was mentioned (who had Heller in the pool??) and (b) this is sadly about as good as it gets in a general election debate.

Last but not least, The Donald’s failure to clearly and unequivocally declare support for the election outcome is terrifying. Shades of “John Marshall has made his decision, now let him enforce it.” So much of what our system is built on relies on these bedrock concepts of respect for institutions and structure even and especially when you lose. It’s a logical extension of the mindset where you make shit up to not consider a duly nominated Justice as we’ll be learning more about in THE OTHER DEBATE from last night (segue!)

The OTHER Debate on Wednesday…. Chair of the Senate Judiciary Committee, Chuck Grassley, and Patty Judge discuss SCOTUS

Moderator: The first question focuses on the nomination of Judge Merrick Garland to the Supreme Court. Senator Grassley since Judge Garland's nomination you have opposed convening confirmation hearings. Just last month though you said you would consider hearings during a lame duck session after election day. Why sir soften your stance?

Grassley: I will not change my position from my February 23rd letter that the people ought to have a voice and the new President whether it's Trump or Ms. Clinton will make the next appointment as far as I'm concerned. The reason we did not have a hearing and 52 other Senators agreeing with that, we have taken the position similar to what Democratic senators have taken when there's been Republican Presidents, three different ones, and the point that they made in the last year of a Presidential term if a vacancy happens then people have a choice and let the new President make it. So you can't have one rule for Democratic Presidents and another rule for Republican Presidents so we're being very consistent.

Moderator: To be specific the 52 Senators that you mentioned if they change their minds and favored confirmation hearings during a lame duck session not to say that you support it, but would you consider it?

Grassley: If a majority of the Senate said that they were going to move ahead, a chairman serves at the majority of the Senate of the United States, and I would follow the majority of the Senate. I don't expect that to happen though.

Moderator: As consistently as Senator Grassley has opposed the confirmation hearings, you advocated for them, I want to take you back to June of 1992 as a U.S Senator Vice President Joe Biden talked hypothetically about postponing those hearings on a Supreme Court vacancy, should be there one, until after the election of that day in November of 1992. Given your advocacy for hearings about Judge Garland's nomination do you then believe the Vice President of the United States, as one the leaders of your party, was wrong 26 years ago?

Judge: Well I believe we now have the longest time in the history of this country between a nomination and a hearing and that is unprecedented. I believe that it is hampering the court, we have a court that is not able to function as it was designed by the Constitution. We have disrupted the balance of power, whatever Joe Biden said in the halls on Congress at some time, if that is in fact is his view, that is not my view. I believe that the duty of the Judiciary Committee is to have a hearing and my opponent is refusing to do that. It should be done and I am really tonight troubled that his answer about a lame duck session. It concerns me that he is leaving himself some wiggle room so that they can have a hearing for Judge Garland between the time this election over and Hillary Clinton takes office.

Grassley: In 1968 there was a vacancy, the Democratic Senate decided not to fill the vacancy. they presumably though that Humphrey was going to be elected, Humphrey wasn't elected, Nixon was elected, Nixon appointed two new people to the Supreme Court. So consequently even in 2007 Schumer said 18 months ahead of time if there's a vacancy it should be filled by the new one. Then in 2005, Reid gave a speech in which he said there's nothing in the Constitution that says the Senate has to move ahead. That's the checks and balances of our government.

Moderator: Ms Judge he seems to cite precedent, three that I can hear, what's your response?

Judge: My response is that this is wrong. This is obstruction of the process, we have a Supreme Court that is unable to function, this is exactly what's wrong with Washington. This is why people are angry. Because instead of getting to work, doing what should be done, they are playing political games in Washington DC and it has to stop.

Grassley: There's nothing wrong with the checks and balances in our Constitution. The President nominates, the Senate confirms. Or advises and consents. Or not to consent as they choose to do based upon what Senator Reid, the Democratic leader said in 2005.

Judge: You know we can talk about what somebody said but the truth of the matter is we have not had a functioning court in months, we will not have a functioning court for many more months. That is wrong. That is political games whether it's being played by the Republicans or Democrats it is wrong and it needs to stop.

Tim: This rule-changing on the fly is straight-up Orwellian. I wish the Republicans would just be sincere with everyone and say what they’re trying to do… pack the Court. For a party obsessed with promoting original intent and fidelity to The Framers, this is hypocrisy of the highest order.

Adam: The lie about 1968 shows just how unmoored the argument against holding a hearing is. First of all, what Grassley is talking about is a filibuster of the Fortas nomination. The only way Fortas could be filibustered is if the Judiciary Committee Chairman agreed to hold a hearing and a committee vote, which is what happened with Fortas. Secondly, why would Democrats deep-six a Democratic nominee on the hope that another Democrat would win the White House. That would be just about the dumbest political strategy in history. And of course that’s not what happened. A majority of Senate Democrats voted to end the filibuster against Fortas and a majority of Republicans voted to continue it. And of course, all the Democrats to vote against the Fortas nomination came from Dixiecrats except for border state Senator Robert Byrd https://library.cqpress.com/cqalmanac/document.php?id=cqal68-1284316.

I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you. (CNN)

Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score the good Senator’s scenario? Will the GOP actually put up a united front against President Clinton’s nominee?

Adam: The combination of the treatment of the Garland nomination and the Trump nomination makes me think that I have no idea what the outer boundaries of acceptable political actions are any more. That said, 10 if GOP retains the Senate. 1 if they do not. They do not confirm anyone unless the West Wing scenario comes true and they can place a conservative in Scalia’s seat in return for a liberal in another seat.

A friend (Dave Saldana) said to me that a law prof he admires, Nomi Stolzenberg, describes the Senate filibuster as political Lochnerism--a countermajoritarian method to keep the elected branches from fulfilling their duty to represent the people. This brings up interesting issues that probably go beyond the scope of this podcast. But briefly, Lochner is a case in which the U.S. Supreme Court struck down a New York State maximum hour law based on an implied right in the Constitution of freedom of contract. But the term Lochnerism encompasses a number of different strategies the Court used to strike down turn-of-the-century laws to reform the gilded age economy, including the Commerce Clause, the Takings Clause, the Nondelegation Doctrine, the Contracts Clause, and others. It is true that the Founders set up both the Supreme Court and the Senate to be checks on the impulses of the majority. But there must be a line at which the majority will is so thwarted that the government overall loses its ability to say that it has the consent of the governed (gerrymandering is yet another issue that could fit into this discussion). So, to keep within the bounds of the podcast, the Supreme Court faced this question in the 30s and triggered a real constitutional crisis but found a way to step back from the precipice. If the Senate remains in Republican hands, it looks like Republicans are getting closer and closer to triggering another constitutional crisis.

Lena:

McCain pulled the curtain back. Revealed the grand plan all along and it’s a nightmare. Now, I’m delighted in some ways that this has been exposed for exactly what it is. I’m more surprised it was McCain who made the misstep of actually saying it outloud. I’ve tried to play this out a bit so bear with me. In pulling back the curtain, we see McConnell as the Wizard, but probably the Scarecrow is maybe Grassley for following along without questions, then Toomey for lacking courage, and McCain for the lack of heart.

That said, i think the Rs think this is their only tactic and even if they maintain a majority in the Senate will need to appear like they’re friendly/getting stuff done. I’m pretty sure I’m then calling this a 5 because part of me is optimistic that things can’t get worse. The other part of me is realistic enough to know that it’s quite possible we haven’t yet hit the bottom. But this constitutional crisis - where 1) rule of law isn’t respected, 2) institutions like Senate procedure, tradition isn’t respected, 3) 1 branch shuts down another branch, and 4) judiciary just isn’t being staffed (from SCOTUS on down) is really really scary. We need to really inform people that this isn’t politics as usual. This isn’t some sort of eye-for-an-eye maneuver. This is a takedown of the functioning of our gov’t which ultimately will further hurt the Court’s and gov’t’s credibility.

Dan:

Tim: 9/10 - I think the Senator is right… the Republicans will continue to behave as if “the Scalia seat” is theirs by divine right and they will continue to create new reasons out of whole cloth to stand in the way of confirming a duly elected President’s nominee for a replacement. The only question I have is whether they’ll change strategy. I don’t think they can stonewall the next President’s nominees without a hearing (right???) so then they have to pay the political price of just rejecting every nominee on “substance” each time. I expect a lot of foot dragging and delay under this scenario. No Justice seated in the next Congress… at all... if there’s a GOP Senate.

The Second Debate has… a SCOTUS question!

What do you think of the SCOTUS question and the answers by the candidates?

Lena: Was excited by the question (thank you, Beth Miller!), but had to review transcript to read the actual answers:

We have another audience question. Beth Miller has a question for both candidates.

QUESTION: Good evening. Perhaps the most important aspect of this election is the Supreme Court justice. What would you prioritize as the most important aspect of selecting a Supreme Court justice?

RADDATZ: We begin with your two minutes, Secretary Clinton.

CLINTON: Thank you. Well, you’re right. This is one of the most important issues in this election. I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge and then gotten on the bench, but, you know, maybe they tried some more cases, they actually understand what people are up against.

Because I think the current court has gone in the wrong direction. And so I would want to see the Supreme Court reverse Citizens United and get dark, unaccountable money out of our politics. Donald doesn’t agree with that.

I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don’t always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise. I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality.

Now, Donald has put forth the names of some people that he would consider. And among the ones that he has suggested are people who would reverse Roe v. Wade and reverse marriage equality. I think that would be a terrible mistake and would take us backwards.

I want a Supreme Court that doesn’t always side with corporate interests. I want a Supreme Court that understands because you’re wealthy and you can give more money to something doesn’t mean you have any more rights or should have any more rights than anybody else.

So I have very clear views about what I want to see to kind of change the balance on the Supreme Court. And I regret deeply that the Senate has not done its job and they have not permitted a vote on the person that President Obama, a highly qualified person, they’ve not given him a vote to be able to be have the full complement of nine Supreme Court justices. I think that was a dereliction of duty.

I hope that they will see their way to doing it, but if I am so fortunate enough as to be president, I will immediately move to make sure that we fill that, we have nine justices that get to work on behalf of our people.

TRANSCRIPT OF THE SCOTUS QUESTION AND ANSWERS

TRUMP: Justice Scalia, great judge, died recently. And we have a vacancy. I am looking to appoint judges very much in the mold of Justice Scalia. I’m looking for judges — and I’ve actually picked 20 of them so that people would see, highly respected, highly thought of, and actually very beautifully reviewed by just about everybody.

But people that will respect the Constitution of the United States. And I think that this is so important. Also, the Second Amendment, which is totally under siege by people like Hillary Clinton. They’ll respect the Second Amendment and what it stands for, what it represents. So important to me.

Now, Hillary mentioned something about contributions just so you understand. So I will have in my race more than $100 million put in — of my money, meaning I’m not taking all of this big money from all of these different corporations like she’s doing. What I ask is this.

So I’m putting in more than — by the time it’s finished, I’ll have more than $100 million invested. Pretty much self-funding money. We’re raising money for the Republican Party, and we’re doing tremendously on the small donations, $61 average or so.

I ask Hillary, why doesn’t — she made $250 million by being in office. She used the power of her office to make a lot of money. Why isn’t she funding, not for $100 million, but why don’t you put $10 million or $20 million or $25 million or $30 million into your own campaign?

It’s $30 million less for special interests that will tell you exactly what to do and it would really, I think, be a nice sign to the American public. Why aren’t you putting some money in? You have a lot of it. You’ve made a lot of it because of the fact that you’ve been in office. Made a lot of it while you were secretary of state, actually. So why aren’t you putting money into your own campaign? I’m just curious.

CLINTON: Well...

(CROSSTALK)

RADDATZ: Thank you very much. We’re going to get on to one more question.

CLINTON: The question was about the Supreme Court. And I just want to quickly say, I respect the Second Amendment. But I believe there should be comprehensive background checks, and we should close the gun show loophole, and close the online loophole. COOPER: Thank you.

RADDATZ: We have — we have one more question, Mrs. Clinton.

CLINTON: We have to save as many lives as we possibly can.

Adam

The big surprise is that Clinton threw Merrick Garland under the bus (although she offered to call 9-1-1 for him a few seconds later). It’s interesting that Citizens United has reached Roe v. Wade and Brown v. Board level of public understanding. A case citation is enough for the public to know what a politician is talking about. Despite Tim’s best efforts, Griswold isn’t there.

Tim

Adam loves reminding everyone of my favorite case! An uncommonly silly law!! I only hope The Donald considers it as “beautifully reviewed” as his SCOTUS short list. Tremendous.

(1) Chris Wallace follows up with Trump who again tries to spend 10 seconds talking about the Court and then switches topics. Wallace doesn’t like it when people completely ignore his question. But Trump refuses to answer the question no matter how often Wallace presses.

(2) Clinton gives the same exact response she gave during this debate, perhaps leaving herself a bit more wriggle room to reappoint Merrick Garland. The real question is whether Chris Wallace picks up on the fact that Clinton described Judge Garland’s resume as the wrong resume for a justice she would select. That would make for a very interesting debate question, and Wallace is smart enough to do that.

Tim

If Wallace asks a generic SCOTUS question - which I expect to be more softbally… “The Supreme Court is important… discuss” then Trump gets a free pass like before. If he surprises me and asks a more substantive question (“name a case you want reversed and would you appoint justices to effectuate that?”) then I agree with Adam.

President Hillary Clinton nominates Barack Obama to the Supreme Court, who immediately pledges to reverse “Citizens United.” Senate Democrats make a rule change that allows Obama to be confirmed with 51 Senate votes. He is. (source: Facebook)

Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score Mr. Reich?

Tim

Agree on nuclear option because it will be needed for his confirmation (PS this will also double down on the SCOTUS nom enmity that started with Bork nom) but I think Mr. Reich is wrong on the former President “pledging” to reverse Citizens United. He may very well vote for that if before him on the Court, but there’s no way he’d say that in a hearing or anywhere else. He’d stick with tradition and play the “won’t comment on cases that may come before me” card. Reich gets a 5/10.

Lena

3/10

Let’s not wait until January/February/March, PLEASE!

Agree with Tim. The idea of litmus tests gives me a little pause and there’s no pledging to do X or Y, and we shouldn’t have nominees willing to say that given the facts and law drive decisions.

May need to reform the filibuster for SCOTUS noms, as Tim suggests, so he could get confirmed by a simple majority instead of super majority as it stands for the Highest Court nominees right now.

That said, I’m optimistic that as much light and distance will need to happen between the GOP and Trump that PERHAPS they’ll try to appear like they’ll get work done. So perhaps, even in that scenario, a few Rs would cross over to respect the President’s power to appoint justices to the Supreme Court so maybe don’t even need the super majority.

I don’t think President Obama wants the job.

Adam

The entire reason that the GOP never went nuclear during the Bush years was to filibuster a Democratic president’s nominee to replace Scalia or Thomas. The nuclear option will be triggered no matter what the other politics, which might involve “we’re going to roll the base on immigration, we need to fight on SCOTUS).

Clinton doesn’t really like Obama enough to nominate him, nor does Obama want the job. William Howard Taft’s place in history is secure.

2/10

]]>In this episode we chat about our the SCOTUS questions in the second and upcoming third presidential debates and then America's favorite gameshow returns—Election Speculation: Celebrity Edition!

What do you think of the SCOTUS question and the answers by the candidates?

Lena: Was excited by the question (thank you, Beth Miller!), but had to review transcript to read the actual answers:

We have another audience question. Beth Miller has a question for both candidates.

QUESTION: Good evening. Perhaps the most important aspect of this election is the Supreme Court justice. What would you prioritize as the most important aspect of selecting a Supreme Court justice?

RADDATZ: We begin with your two minutes, Secretary Clinton.

CLINTON: Thank you. Well, you’re right. This is one of the most important issues in this election. I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge and then gotten on the bench, but, you know, maybe they tried some more cases, they actually understand what people are up against.

Because I think the current court has gone in the wrong direction. And so I would want to see the Supreme Court reverse Citizens United and get dark, unaccountable money out of our politics. Donald doesn’t agree with that.

I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don’t always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise. I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality.

Now, Donald has put forth the names of some people that he would consider. And among the ones that he has suggested are people who would reverse Roe v. Wade and reverse marriage equality. I think that would be a terrible mistake and would take us backwards.

I want a Supreme Court that doesn’t always side with corporate interests. I want a Supreme Court that understands because you’re wealthy and you can give more money to something doesn’t mean you have any more rights or should have any more rights than anybody else.

So I have very clear views about what I want to see to kind of change the balance on the Supreme Court. And I regret deeply that the Senate has not done its job and they have not permitted a vote on the person that President Obama, a highly qualified person, they’ve not given him a vote to be able to be have the full complement of nine Supreme Court justices. I think that was a dereliction of duty.

I hope that they will see their way to doing it, but if I am so fortunate enough as to be president, I will immediately move to make sure that we fill that, we have nine justices that get to work on behalf of our people.

TRUMP: Justice Scalia, great judge, died recently. And we have a vacancy. I am looking to appoint judges very much in the mold of Justice Scalia. I’m looking for judges — and I’ve actually picked 20 of them so that people would see, highly respected, highly thought of, and actually very beautifully reviewed by just about everybody.

But people that will respect the Constitution of the United States. And I think that this is so important. Also, the Second Amendment, which is totally under siege by people like Hillary Clinton. They’ll respect the Second Amendment and what it stands for, what it represents. So important to me.

Now, Hillary mentioned something about contributions just so you understand. So I will have in my race more than $100 million put in — of my money, meaning I’m not taking all of this big money from all of these different corporations like she’s doing. What I ask is this.

So I’m putting in more than — by the time it’s finished, I’ll have more than $100 million invested. Pretty much self-funding money. We’re raising money for the Republican Party, and we’re doing tremendously on the small donations, $61 average or so.

I ask Hillary, why doesn’t — she made $250 million by being in office. She used the power of her office to make a lot of money. Why isn’t she funding, not for $100 million, but why don’t you put $10 million or $20 million or $25 million or $30 million into your own campaign?

It’s $30 million less for special interests that will tell you exactly what to do and it would really, I think, be a nice sign to the American public. Why aren’t you putting some money in? You have a lot of it. You’ve made a lot of it because of the fact that you’ve been in office. Made a lot of it while you were secretary of state, actually. So why aren’t you putting money into your own campaign? I’m just curious.

CLINTON: Well...

(CROSSTALK)

RADDATZ: Thank you very much. We’re going to get on to one more question.

CLINTON: The question was about the Supreme Court. And I just want to quickly say, I respect the Second Amendment. But I believe there should be comprehensive background checks, and we should close the gun show loophole, and close the online loophole. COOPER: Thank you.

RADDATZ: We have — we have one more question, Mrs. Clinton.

CLINTON: We have to save as many lives as we possibly can.

Adam

The big surprise is that Clinton threw Merrick Garland under the bus (although she offered to call 9-1-1 for him a few seconds later). It’s interesting that Citizens United has reached Roe v. Wade and Brown v. Board level of public understanding. A case citation is enough for the public to know what a politician is talking about. Despite Tim’s best efforts, Griswold isn’t there.

Tim

Adam loves reminding everyone of my favorite case! An uncommonly silly law!! I only hope The Donald considers it as “beautifully reviewed” as his SCOTUS short list. Tremendous.

(1) Chris Wallace follows up with Trump who again tries to spend 10 seconds talking about the Court and then switches topics. Wallace doesn’t like it when people completely ignore his question. But Trump refuses to answer the question no matter how often Wallace presses.

(2) Clinton gives the same exact response she gave during this debate, perhaps leaving herself a bit more wriggle room to reappoint Merrick Garland. The real question is whether Chris Wallace picks up on the fact that Clinton described Judge Garland’s resume as the wrong resume for a justice she would select. That would make for a very interesting debate question, and Wallace is smart enough to do that.

Tim

If Wallace asks a generic SCOTUS question - which I expect to be more softbally… “The Supreme Court is important… discuss” then Trump gets a free pass like before. If he surprises me and asks a more substantive question (“name a case you want reversed and would you appoint justices to effectuate that?”) then I agree with Adam.

President Hillary Clinton nominates Barack Obama to the Supreme Court, who immediately pledges to reverse “Citizens United.” Senate Democrats make a rule change that allows Obama to be confirmed with 51 Senate votes. He is. (source: Facebook)

Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score Mr. Reich?

Tim

Agree on nuclear option because it will be needed for his confirmation (PS this will also double down on the SCOTUS nom enmity that started with Bork nom) but I think Mr. Reich is wrong on the former President “pledging” to reverse Citizens United. He may very well vote for that if before him on the Court, but there’s no way he’d say that in a hearing or anywhere else. He’d stick with tradition and play the “won’t comment on cases that may come before me” card. Reich gets a 5/10.

Lena

3/10

Let’s not wait until January/February/March, PLEASE!

Agree with Tim. The idea of litmus tests gives me a little pause and there’s no pledging to do X or Y, and we shouldn’t have nominees willing to say that given the facts and law drive decisions.

May need to reform the filibuster for SCOTUS noms, as Tim suggests, so he could get confirmed by a simple majority instead of super majority as it stands for the Highest Court nominees right now.

That said, I’m optimistic that as much light and distance will need to happen between the GOP and Trump that PERHAPS they’ll try to appear like they’ll get work done. So perhaps, even in that scenario, a few Rs would cross over to respect the President’s power to appoint justices to the Supreme Court so maybe don’t even need the super majority.

I don’t think President Obama wants the job.

Adam

The entire reason that the GOP never went nuclear during the Bush years was to filibuster a Democratic president’s nominee to replace Scalia or Thomas. The nuclear option will be triggered no matter what the other politics, which might involve “we’re going to roll the base on immigration, we need to fight on SCOTUS).

Clinton doesn’t really like Obama enough to nominate him, nor does Obama want the job. William Howard Taft’s place in history is secure.

2/10

]]>48:37cleanAdvice & Consent 14: Post-debate SCOTUS talk and more election speculationWed, 28 Sep 2016 03:31:56 +0000In this episode we chat about our surprise at no SCOTUS talk in the first presidential debate and then revisit America's favorite gameshow: Election Speculation!

America’s favorite game show RETURNS: Election Speculation!

50-50 Senate with Dems in control (VP Biden breaks tie) from 1/3/17-1/20/17 at noon

GOP takes over Senate as of 1/20/17 at noon (VP Pence breaks tie).

RANK SPECULATION:

Tim: Dems trigger nuclear option to confirm Judge Garland’s nomination. Republicans scream this is a coup. Prior to the beginning of the spring term, President Trump orders Capitol Police to prevent Justice Garland from entering 1 First St NE. Constitutional crisis commences. Tim hears all about it on the CBC coverage while in line for poutine in Montreal following the Habs-Leafs game.

Lena: Trump wins: Everyone screams, and the Democrats dig in. Try to reason with the Republican Senators who are also scared of a Trump presidency (silver lining: more cooperation between Senators?). Meanwhile, I’m figuring out how to “work from home” meaning that I’ll be working from another country, perhaps one of the ones with paid sick leave, equal pay or better child care policies.

Adam: I’ll be at the Supreme Court’s Pacific courthouse in New Zealand with Justice Ginsburg.

]]>In this episode we chat about our surprise at no SCOTUS talk in the first presidential debate and then revisit America's favorite gameshow: Election Speculation!

50-50 Senate with Dems in control (VP Biden breaks tie) from 1/3/17-1/20/17 at noon

GOP takes over Senate as of 1/20/17 at noon (VP Pence breaks tie).

RANK SPECULATION:

Tim: Dems trigger nuclear option to confirm Judge Garland’s nomination. Republicans scream this is a coup. Prior to the beginning of the spring term, President Trump orders Capitol Police to prevent Justice Garland from entering 1 First St NE. Constitutional crisis commences. Tim hears all about it on the CBC coverage while in line for poutine in Montreal following the Habs-Leafs game.

Lena: Trump wins: Everyone screams, and the Democrats dig in. Try to reason with the Republican Senators who are also scared of a Trump presidency (silver lining: more cooperation between Senators?). Meanwhile, I’m figuring out how to “work from home” meaning that I’ll be working from another country, perhaps one of the ones with paid sick leave, equal pay or better child care policies.

Adam: I’ll be at the Supreme Court’s Pacific courthouse in New Zealand with Justice Ginsburg.

]]>42:41cleanAdvice & Consent 13: Election speculationTue, 16 Aug 2016 11:00:00 +0000In this episode we present America's favorite gameshow: Election Speculation! The roundtable doles out different SCOTUS nomination scenarios based on three electoral outcomes. Spoiler alert: one of them was followed with the sounds of children crying.

Oh my God Ryan Lizza, really?

The Donald doubles down on “the list” until he doesn’t

Told Hugh Hewitt that GOP Senate should filibuster his nomineeif he or she is not on “the list.” Also says there might be 4-5 more names added to it, stating “It byis possible there’ll be somebody outside of that list that has very similar principles, and I think you don’t want to totally preclude that.” Sooo… yeah.

And they say we don’t care…

HuffPo/YouGov Pollsays that SCOTUS is second most important issue in this presidential election. Economy is at 45%, which party nominates the next SCOTUS Justice is at 30%. (25% for Democrats, 33% for Republicans, 36% for Independents)

SCOTUS Nominations Election Speculation

America’s favorite game show! The roundtable speculates mic drop style on these scenarios:

SCENARIO 1: HRC wins with D Senate coming in… what does the President and GOP Senate do between now and January 2017 regarding the Scalia vacancy?

What does the GOP minority do with future HRC appointees? Filibusters?

SCENARIO 2: HRC wins with GOP Senate majority remaining intact...

what does the President and GOP Senate do between now and January 2017 regarding the Scalia vacancy?

How does the GOP majority handle future HRC appointees? Will there be similar phony new rules on SCOTUS nominations?

SCENARIO 3: The Donald wins...

We know the Senate would run the clock out on the Garland nomination. We’ll assume a GOP Senate too. Who’s the likeliest Scalia replacement from the Trump/Heritage list? What do the Dems do in response? And, perhaps most importantly... Adam when we go in on Vancouver Canucks season tickets, would you prefer we sit in the 300s behind the visiting net for 2 periods or the most economical lower bowl option available?

]]>In this episode we present America's favorite gameshow: Election Speculation! The roundtable doles out different SCOTUS nomination scenarios based on three electoral outcomes. Spoiler alert: one of them was followed with the sounds of children crying.

Told Hugh Hewitt that GOP Senate should filibuster his nominee if he or she is not on “the list.” Also says there might be 4-5 more names added to it, stating “It byis possible there’ll be somebody outside of that list that has very similar principles, and I think you don’t want to totally preclude that.” Sooo… yeah.

HuffPo/YouGov Poll says that SCOTUS is second most important issue in this presidential election. Economy is at 45%, which party nominates the next SCOTUS Justice is at 30%. (25% for Democrats, 33% for Republicans, 36% for Independents)

SCOTUS Nominations Election Speculation

America’s favorite game show! The roundtable speculates mic drop style on these scenarios:

SCENARIO 1: HRC wins with D Senate coming in… what does the President and GOP Senate do between now and January 2017 regarding the Scalia vacancy?

What does the GOP minority do with future HRC appointees? Filibusters?

SCENARIO 2: HRC wins with GOP Senate majority remaining intact...

what does the President and GOP Senate do between now and January 2017 regarding the Scalia vacancy?

How does the GOP majority handle future HRC appointees? Will there be similar phony new rules on SCOTUS nominations?

SCENARIO 3: The Donald wins...

We know the Senate would run the clock out on the Garland nomination. We’ll assume a GOP Senate too. Who’s the likeliest Scalia replacement from the Trump/Heritage list? What do the Dems do in response? And, perhaps most importantly... Adam when we go in on Vancouver Canucks season tickets, would you prefer we sit in the 300s behind the visiting net for 2 periods or the most economical lower bowl option available?

]]>57:14yesAdvice & Consent 12: SCOTUS politicsWed, 27 Jul 2016 11:00:00 +0000In this episode... the major party political conventions inject some SCOTUS politics into the national dialogue. Plus... the Notorious RBG drops a mic on one of the nominees.

Discusses the role of the NRA and endorsing/opposing nominees and “scoring” votes. Before 2009, NRA neverscoreda judicial nomination vote. McConnell asked them to do so, which would help keep his party in line. In 1979, they did oppose confirmation of Abner Mikva to D.C. Circuit, who passed away this month.

“According to the 2016 Republican platform, it is pornography, not guns in any hand that can hold one, that is a ‘public health crisis.’ Whatever might ‘make America safe again,’ to quote the slogan of the Republican convention’s opening night, it evidently won’t be even the mildest restriction on gun ownership. Is this what the American public, surveying the bloody ground of recent months, really thinks?”

HRC and DNC on SCOTUS

Recent survey by HRC campaign to new donors (Full disclosure, that’s me - Tim) there is no mention of SCOTUS as a main issue for supporting her. Reaction?

Sen. Sanders mentions overturningCitizens United- what do you all think about campaigning on overturning specific cases like that?

Discusses the role of the NRA and endorsing/opposing nominees and “scoring” votes. Before 2009, NRA never scored a judicial nomination vote. McConnell asked them to do so, which would help keep his party in line. In 1979, they did oppose confirmation of Abner Mikva to D.C. Circuit, who passed away this month.

“According to the 2016 Republican platform, it is pornography, not guns in any hand that can hold one, that is a ‘public health crisis.’ Whatever might ‘make America safe again,’ to quote the slogan of the Republican convention’s opening night, it evidently won’t be even the mildest restriction on gun ownership. Is this what the American public, surveying the bloody ground of recent months, really thinks?”

HRC and DNC on SCOTUS

Recent survey by HRC campaign to new donors (Full disclosure, that’s me - Tim) there is no mention of SCOTUS as a main issue for supporting her. Reaction?

Sen. Sanders mentions overturning Citizens United - what do you all think about campaigning on overturning specific cases like that?

]]>43:18cleanAdvice & Consent 11: "What Did I Miss?" - SCOTUS wraps up the termTue, 28 Jun 2016 12:40:53 +0000On this episode... SCOTUS wraps up the term with a bang - do any of the rulings impact the Scalia vacancy?

Three big holdings end the SCOTUS term

Fisher v. University of Texas at Austin- UT affirmative action program upheld, resulting in a lot of #byefelicia’s for Ms. Fisher, one of the more maligned plaintiffs in the history of American jurisprudence. Fear not: #abbywiththebadgrades will likely be a fixture on the right-leaning speaker circuit for the next decade or two, despite no UT degree.

This one was a bit of a surprise since it was Justice Kennedy who came in and delivered the winning vote, an evolution that Adam will speak more about later. It appears the reports of affirmative action’s death were greatly exaggerated?

United States v. Texas- 4-4 Court affirms the lower court’s rejection of POTUS immigration executive orders. The right says “SEE!!!” and the left says “SEE!!!!” Executive authority questions get the punt by SCOTUS… had Justice Scalia been with us, perhaps executive actions like this would have been curtailed. On the other hand, would a seated Justice Garland have meant a victory for the President?

Whole Woman’s Health v. Hellerstedt - A Texas law imposing regulations that abortion clinics’ doctors have admitting privileges to local hospitals and that clinics meet the standards of “ambulatory surgical centers” struck down as an undue burden on women’s rights. Anti-choice leaders decry this as an anti-women’s health ruling (like, for real) and pro-choice leaders breathe a sigh of relief as this brazenly obvious tactic appears to be over.

Interesting note: The majority opinion, essentiallyCasey II: Electric Boogaloo, was written not byCaseyauthor Justice Kennedy, but by Justice Breyer. Given seniority drafting rules when the Chief Justice is not in the majority, this presumably means Kennedy had the opportunity to writeC2:EBbut “gave” this one to Breyer.

Adam: Justice Kennedy’s continued swing to the left has an interesting side-effect. Even as the 4-4 deadlock has shown that the Court is hamstrung, immigration is already doing to be as giant an issue as it could be with Trump on the ticket, and it's going to be fought on substance, not executive power or judicial indecision.

However, if abortion, which has--for 40+ years--been a right protected by the Court despite legislative attack had lost protection based on a technicality like a 4-4 decision, they would have made the Court a giant issue for liberals and would have had major reverberations for Senate races, which, for now, seem more up in the air than the presidential race. So, Anthony Kennedy, by protecting women's rights, you must also have protected Senator McConnell’s job as majority leader and buried Judge Garland’s nomination even further, at least until after the election.

Lena:

ABA well-qualified?

#AllCourtsMatter: the 8 Justice bench is making what’s happening at lower courts even more noticed and, perhaps, appreciated, by court watchers and hopefully ordinary folks. Because especially when a Supreme Court is at less than full capacity there are real implications: 1) most cases don’t ever make it to the Supreme Court.* 2) The Supreme Court has been issuing 4-4 decisions which have no precedential value so the courts do not have a universal law of the land to follow which can certainly impact courts and peoples’ understanding of the law and create even more inconsistent and confusing decisions, 3) The Supreme Court has been unable to decide and letting some Circuit Court decisions stand - given them the final say, instead of the Supreme Court.

*The Supreme Court grants oral arguments for only 75-80 cases for more than 10,000 petitions submitted to the court annually.Circuit Courts receive more than 55,600 filings annually.District Courts receive more than 390,500 filings annually.

But what we’re being subjected to in the case of Chief Judge Roberts and the Republican’s just-say-no approach, has been foreshadowed and - I think trying to establish a new normal for doing nothing - on the lower court levels.

By the numbers: Today we saw one district court nominee confirmed, Robert Rossiter to the U.S. District Court for the District of Nebraska. He fills a seat that’s been vacant since 10/3/2014, and he was nominated 8 months later in 6/2015. Now more than a year later, he was confirmed. And this seat was designated a judicial emergency (definition of judicial emergency).

But this is only the 21st Article III judge confirmed since Republicans took over the majority in 2015. Compare that to other presidents in their last 2 years in office. We are less than half-way to the lowest number of judicial confirmations since President Eisenhower, who had 44 confirmations in his last 2 years.

A better - and probably more appalling - indicator of progress is the overall number of judicial vacancies. Since the start of 2015, the number of vacancies has increased from 43 to 83. Compare this to President George W. Bush when the number of vacancies decreased from 56 to 47.

So, by the numbers, when it comes to Article III judicial vacancies, as of 6/28, there are:

There has also been discussion about the diversity of the courts, which I think is also a way to help us think not just in numbers but in terms of quality and reflection of society.This piece from The Guardiandetails this, as does thisCQ article. That said, professional diversity is an area that I think many observers of nominations have hoped to see more of - and certainly something that was a topic of conversation when Chief Judge Garland was nominated.

DanA musing on policing, from the Emerald Triangle.

]]>On this episode... SCOTUS wraps up the term with a bang - do any of the rulings impact the Scalia vacancy? Three big holdings end the SCOTUS term

Fisher v. University of Texas at Austin - UT affirmative action program upheld, resulting in a lot of #byefelicia’s for Ms. Fisher, one of the more maligned plaintiffs in the history of American jurisprudence. Fear not: #abbywiththebadgrades will likely be a fixture on the right-leaning speaker circuit for the next decade or two, despite no UT degree.

This one was a bit of a surprise since it was Justice Kennedy who came in and delivered the winning vote, an evolution that Adam will speak more about later. It appears the reports of affirmative action’s death were greatly exaggerated?

United States v. Texas - 4-4 Court affirms the lower court’s rejection of POTUS immigration executive orders. The right says “SEE!!!” and the left says “SEE!!!!” Executive authority questions get the punt by SCOTUS… had Justice Scalia been with us, perhaps executive actions like this would have been curtailed. On the other hand, would a seated Justice Garland have meant a victory for the President?

Whole Woman’s Health v. Hellerstedt - A Texas law imposing regulations that abortion clinics’ doctors have admitting privileges to local hospitals and that clinics meet the standards of “ambulatory surgical centers” struck down as an undue burden on women’s rights. Anti-choice leaders decry this as an anti-women’s health ruling (like, for real) and pro-choice leaders breathe a sigh of relief as this brazenly obvious tactic appears to be over.

Interesting note: The majority opinion, essentially Casey II: Electric Boogaloo, was written not by Casey author Justice Kennedy, but by Justice Breyer. Given seniority drafting rules when the Chief Justice is not in the majority, this presumably means Kennedy had the opportunity to write C2:EB but “gave” this one to Breyer.

Adam: Justice Kennedy’s continued swing to the left has an interesting side-effect. Even as the 4-4 deadlock has shown that the Court is hamstrung, immigration is already doing to be as giant an issue as it could be with Trump on the ticket, and it's going to be fought on substance, not executive power or judicial indecision.

However, if abortion, which has--for 40+ years--been a right protected by the Court despite legislative attack had lost protection based on a technicality like a 4-4 decision, they would have made the Court a giant issue for liberals and would have had major reverberations for Senate races, which, for now, seem more up in the air than the presidential race. So, Anthony Kennedy, by protecting women's rights, you must also have protected Senator McConnell’s job as majority leader and buried Judge Garland’s nomination even further, at least until after the election.

Lena:

ABA well-qualified?

#AllCourtsMatter: the 8 Justice bench is making what’s happening at lower courts even more noticed and, perhaps, appreciated, by court watchers and hopefully ordinary folks. Because especially when a Supreme Court is at less than full capacity there are real implications: 1) most cases don’t ever make it to the Supreme Court.* 2) The Supreme Court has been issuing 4-4 decisions which have no precedential value so the courts do not have a universal law of the land to follow which can certainly impact courts and peoples’ understanding of the law and create even more inconsistent and confusing decisions, 3) The Supreme Court has been unable to decide and letting some Circuit Court decisions stand - given them the final say, instead of the Supreme Court.

*The Supreme Court grants oral arguments for only 75-80 cases for more than 10,000 petitions submitted to the court annually.Circuit Courts receive more than 55,600 filings annually.District Courts receive more than 390,500 filings annually.

But what we’re being subjected to in the case of Chief Judge Roberts and the Republican’s just-say-no approach, has been foreshadowed and - I think trying to establish a new normal for doing nothing - on the lower court levels.

By the numbers: Today we saw one district court nominee confirmed, Robert Rossiter to the U.S. District Court for the District of Nebraska. He fills a seat that’s been vacant since 10/3/2014, and he was nominated 8 months later in 6/2015. Now more than a year later, he was confirmed. And this seat was designated a judicial emergency (definition of judicial emergency).

But this is only the 21st Article III judge confirmed since Republicans took over the majority in 2015. Compare that to other presidents in their last 2 years in office. We are less than half-way to the lowest number of judicial confirmations since President Eisenhower, who had 44 confirmations in his last 2 years.

A better - and probably more appalling - indicator of progress is the overall number of judicial vacancies. Since the start of 2015, the number of vacancies has increased from 43 to 83. Compare this to President George W. Bush when the number of vacancies decreased from 56 to 47.

So, by the numbers, when it comes to Article III judicial vacancies, as of 6/28, there are:

There has also been discussion about the diversity of the courts, which I think is also a way to help us think not just in numbers but in terms of quality and reflection of society. This piece from The Guardian details this, as does this CQ article. That said, professional diversity is an area that I think many observers of nominations have hoped to see more of - and certainly something that was a topic of conversation when Chief Judge Garland was nominated.

And because this podcast apparently can’t quit Donald Trump… he released a list of SCOTUS nominees he says he’ll pick from, should he be elected president. The names are notable as being a “dream list” according to some of conservative judges. We’ll talk more about this list next episode, but it’s similar to the list Lena spoke about in episode 02, notably including Diane Sykes, William Pryor and self-proclaimed Tweeter Laureate of Texas (and worth the follow) Don Willett.

John Malcolm, a senior legal fellow at the Heritage foundation who compiled and published the foundation's list of eight potential Supreme Court nominees in March, called Trump's selections "excellent."

AFJAC: Taken together, the records of these potential Trump nominees reflect a radical-right ideology that threatens fundamental rights, and that favors the powerful over everyone else, especially people from historically marginalized communities. Read the release and the report.

Preamble

Welcome SCOTUSblog readers! Episode 8 was mentioned in the SCOTUSblog round up, and we’re grateful for the mention. For new listeners, we refer you to our origin story in episode 1 (no radioactive spiders or Amazon warrior island upbringings, sorry) for more on who we are, what the show is, what it is not and anything else you might be wondering about.

Garland updates

After a boomlet of activity last week, we’ve settled back into the same spot as before: Democrats are noting the ticking clock and comparing the delay to nominations past, and Republicans are fiddling away as their party deals with the circus clown they’ve hitched their wagon to for the fall elections.

The White House submittedJudge Garland’s questionnaire answers(PDF), which is a normal part of the nomination process. What’s different this time is the Senate Judiciary Committee didn’t draft it and has yet to schedule a hearing, which is unusual or perhaps unprecedented by this point in modern SCOTUS nomination history.

Read Huffpo on Judge Garland never being overruled by SCOTUS (and compare to last week's deep dive into the Bork nomination and how that was a big deal for GOP Judiciary committee members).

Senate meetings scheduled this week for Judge Garland on the Meet and Greet Tour:

“Dahlia Lithwick Fan Club” Segment

DAN: Just a few hours before we recorded tonight, Slate’s Dahlia Lithwick - who is being honored this week as an American Constitution Society Champion of Justice - published an article bemoaning the challenges of covering something as incredibly hugely massively important as the Garland nomination while (a) nothing of substance is happening - and may never happen, and (b) America and our media are consumed with Donald Trump’s baby-hands and bluster-bombs. It’s a great piece and you should read it - there’s a link in the shownotes - and here’s how Dahlia sums it up:

“There is nothing interesting about nothing happening to a 63-year-old judge. Moreover, the court is, by design, secretive and built of paper, and stories about Merrick Garland’s paper answers to questionnaires will never compete with stories about Donald Trump’steeny tiny hands. Even the fact that ‘everybody yawns’ when told about a Supreme Court vacancy being blocked in an unprecedented manner in U.S. history isn’t a story. But that doesn’t mean it shouldn’t be.”

Ghosts of Nominations past revisted

First…a followup on a question Lena posed to Adam in Ep 7regarding the length of time it took for the Rehnquist process.

ADAM: Rehnquist took 49 days, which was actually too short. Important parts of his record didn't come out until after the hearing. And speaking of the da`22ngers of not taking long enough to vet a nominee

This week… our “Kiss Solo Album” series continues with our third edition (We’ll go with the Paul Stanley album), brought to you by Lena Zwarensteyn: theClarence Thomas nomination of 1991...

Clarence Thomas 1991

My Disclaimer/My Party Factoid:In law school I had to take a theater class and for the final I had to pick a monologue. I chose Anita Hill’s testimony. My professor and I had creative differences regarding my presentation, but thankfully it was pass/fail and I (probably just) passed.

I chose it because I distinctly remember tuning into parts of Justice Thomas’ hearing, and hearing parts of Anita Hill’s testimony. Awkward, dorky and on the cusp of my teens, it struck me and clearly it stuck with me.

So, this is the first confirmation process we’re tackling that involves a Justice currently sitting on the Supreme Court. With respect I continue...

Justice Thomas’ Confirmation: Yes, I watched the movie. And Yes, there’s so much to say. So many different rabbit holes we could go down.

The Backstory:

In 1991, Justice Thurgood Marshall, the first African American appointed to the Supreme Court announced his retirement after serving for 24 years (appointed by D President Lyndon Johnson in 1967). Justice Marshall, who led the NAACP’s litigation fight against racial segregation in Brown v. Board of Education and became a national civil rights leader.

President George HW Bush was responsible for nominating the next Justice and he chose Clarence Thomas.

Obviously, the President was NOT trying to seek to fill the role with someone with a similar proclivity toward the law. And he chose a very ideologically conservative and wildly controversial (esp. w/civil rights community) nominee

Notable b/c there was a Democratic majority in the Senate (57 Ds - 43 Rs). Not notable in terms of history - long history of ideological switches (think O’Connor/Alito for next week!)

This was, in many ways, a signal that filling the seat was the President’s prerogative

However, it was a very deliberate choice to select an African American nominee to replace Justice Marshall; and someone who would, by some measures at least, seem to quell concerns from the civil rights leaders and organizations who were very much watching what was happening, especially after the Bork hearings.

Quick tangent for some backstory: President George HW Bush served only one term, but had 2 Supreme Court nominees confirmed. The first was Justice Souter. On July 20, 1990, Justice William Brennan announced his immediate retirement.

4 days later, David Souter was announced, and he was confirmed on October 2, 1990 in a 90-9 confirmation vote.

Souter was a disappointment to conservatives, and so when they next vacancy arose there were some demands for a more reliable

So when Justice Marshall announced his retirement a year later, George HW Bush could finally get his pick of Clarence Thomas. Now to bring it back to last week, Thomas had been nominated in October 1989 to fill the seat on the U.S. Court of Appeals for the D.C. Circuit judge that was vacated by Robert Bork. In March 1990, he was confirmed in a pretty uneventful process.

So here we are though, with Justice Marshall. It’s June 28, 1991 and Justice Marshall announces his retirement (pending confirmation of a replacement). On July 1, President Bush announces Clarence Thomas to be his nominee.

Judge on D.C. Circuit for 1 year until nominated by President George HW Bush.

Automatically, it’s clear there would be a fight:

This would be the 9th Supreme Court Justice appointed by a Republican President. There were clear signs that a conservative movement was afoot and the President was trying to usher in as many ideologically conservative Justices as possible. Unreliable Souter, aside.

His credentials were a bit lackluster, he was very young at 43 and didn’t have a significant amount of judicial experience from which to evaluate how he might be as a judge or rule. And he would be on the bench for a very very long time most likely.

He had enough of a paper trail that hit on clear issues regarding his views on things like affirmative action and Roe v. Wade.

So the 2 major themes that overlapped in many ways but can also be seen independently:

Race

Gender

ABA: American Bar Association’s recommendation panel splits on whether Thomas is qualified or not, the first time since 1969 the ABA has failed to unanimously recommend a nominee. Twelve panelists find Thomas “qualified,” two find him “not qualified,” and none find him “well qualified.”

Sherpas:

Senator Danforth (R-Mo.): Thomas’ former boss; went to 60 courtesy visits with Thomas

Committee Make Up: 8 Ds (Biden Chair) and 6 Rs (Thurmond, RM); only remaining Senators who were on the Committee then and still in office: now RM Leahy (D-Vt.), now Chairman Grassley (R-Iowa), Sen. Hatch (R-Utah)

Ds in Majority

Biden, Chair - final 7th No vote

Kennedy (MA)

Metzenbaum (OH)

DeConcini (AZ) - voted w/RsLeahy (VT) - led vote against him

Heflin (AL) - conservative southerner, considered key

Simon (IL)

Kohl (WI)

Rs

Thurmond, RM

Hatch (UT)

Simpson (WY)Grassley (IA)

Specter (PA)

Hank Brown (CO)

The Committee, based on this alone, could’ve tanked the whole process. BUT THEY DIDN’T.

Reasons for Concern:

Justice Thomas’ hearing made the Democrats increasingly uncomfortable because of his 1) lack of significant and substantive experience, 2) answers about things like his conservative speeches and writings; his answers to things such as if he ever thought about the constitutionality of Roe v. Wade (where he basically said that he’d have to sit down and write the decision to know how he’d feel about it - despite saying he agreed at one point with the theory that there’s a natural law based right to life).

Most of the hearing revolved around Justice Thomas’ view of natural law

Sen. Leahy asked Thomas about Roe v. Wade since it was decided when he was in law school; Thomas couldn’t recall discussing b/c he was married and didn’t spend much time debating cases. Leahy asked if he ever talked about Roe “only in a very general sense” where you listen but didn’t debate

Some Senators rejected the White House’s strategy for Justice Thomas’ answers - which was to evade all answers, go back to his upbringing.

9/27/1991:Senate Judiciary Committee Vote deadlocks in 7-7.

Despite this, the Committee decided to still send him nomination to the floor just without recommendation of the Committee

Keep in Mind, the Senate was TRYING to settle this before the start of the Supreme Court’s October Term

Nomination went to Senate Floor

Floor vote was scheduled for 10/8/1991. But on 10/5/1991, NPR story broke

10/6/1991:2 days before the Senate vote scheduled; FBI report leaked to press that included private conversations/reports: Professor Anita Hill had to then tell the Senate Judiciary Committee that Justice Thomas sexually harassed her when they worked together at the Dept. of Education and EEOC - asking out on dates, inappropriate statements about rape/sex with animals/group sex, described sexual interest.

This led to a delayed floor vote b/c Thomas asked time to clear his name; get support for his nomination. They weren’t sure they’d have the votes without time to rebut.

Basically, MORE HEARINGS - AFTER THE COMMITTEE VOTE - happened. Not a normal process at all, but one that was made at the nominee’s request and really was wrenching on so many levels.

10/11/1991:Anita Hill called to testify in front of Committee

Committee held 3 days of hearings.

Hill gave excruciating detail; all public because the details and specificity seemed to matter in convincing people she could be believed

She really wanted to stay silent; didn’t want to make a sexual harassment claim

Others did come forward, but they didn’t end up testifying

Even submitted to a polygraph test, that verified her statements

Thomas adamantly denied

Said he was being subjected to a "high-tech lynching for uppity blacks" by white liberals who were seeking to block a black conservative from taking a seat on the Supreme Court.

Called Hill his "most traitorous adversary" and saying that pro-choice liberals used the scandal against him.

Tried to again discredit Anita Hill as "a left-winger who'd never expressed any religious sentiments whatsoever...and the only reason why she'd held a job in the Reagan administration was because I'd given it to her."[

Hill denied the accusations in anop-edin theNew York Timessaying she would not "stand by silently and allow [Justice Thomas], in his anger, to reinvent me".

10/15/1991:U.S. Senate confirms Clarence Thomas by the narrowest margin in the 20th century: 52 to 48.

Despite being barraged by a Committee of all men, Americans got to see this, and workplace harassment was acknowledged, seen by many as very real (don’t ask Sen. Hatch, however; his questions to Anita Hill were, to be kind, offensive, which is a side outcome of how public victim-blaming was/is. From plagiarism to mistaking her source when talking about the name of a porn star Thomas mentioned). Still, it wasn’t considered “THAT BAD.” For many around the country, especially women, however, there was a sigh of relief that someone was publicly talking about workplace sexual harassment, describing common experiences, and not standing down.

Reports of sexual harassment to EEOC increased.

Not a single woman on that Committee: Inspired women and people who support women to run for office; voices mattered - more women ran for office

PUBLIC Hearings - Americans got to see the whole thing and make judgments on their own

Process and timing:

Thomas has described how demeaning the process was: "No job is worth what I've been through — no job. No horror in my life has been so debilitating. Confirm me if you want. Don't confirm me if you are so led."

Justice Thomas talks about how horrible the process was, how grueling it was for him to spend about 100 days going through this process. Right now, we’re doing that and more for Chief Judge Garland.

Adam:Washington Post article describing Justice Thomas’ testimony embracing a right to privacy, Senator DeConcini’s reliance on that testimony, and then Justice Thomas’ opinion rejecting the right to privacy inLawrence v. Texas.

Tim:SNL's blistering take lampoons the all male Judiciary Committee as being more concerned about Clarence Thomas' pickup techniques... this was super edgy and just blistered a group of men being the arbiters of sexual harassment.

Welcome SCOTUSblog readers! Episode 8 was mentioned in the SCOTUSblog round up, and we’re grateful for the mention. For new listeners, we refer you to our origin story in episode 1 (no radioactive spiders or Amazon warrior island upbringings, sorry) for more on who we are, what the show is, what it is not and anything else you might be wondering about.

Garland updates

After a boomlet of activity last week, we’ve settled back into the same spot as before: Democrats are noting the ticking clock and comparing the delay to nominations past, and Republicans are fiddling away as their party deals with the circus clown they’ve hitched their wagon to for the fall elections.

The White House submitted Judge Garland’s questionnaire answers (PDF), which is a normal part of the nomination process. What’s different this time is the Senate Judiciary Committee didn’t draft it and has yet to schedule a hearing, which is unusual or perhaps unprecedented by this point in modern SCOTUS nomination history.

Read Huffpo on Judge Garland never being overruled by SCOTUS (and compare to last week's deep dive into the Bork nomination and how that was a big deal for GOP Judiciary committee members).

Senate meetings scheduled this week for Judge Garland on the Meet and Greet Tour:

DAN: Just a few hours before we recorded tonight, Slate’s Dahlia Lithwick - who is being honored this week as an American Constitution Society Champion of Justice - published an article bemoaning the challenges of covering something as incredibly hugely massively important as the Garland nomination while (a) nothing of substance is happening - and may never happen, and (b) America and our media are consumed with Donald Trump’s baby-hands and bluster-bombs. It’s a great piece and you should read it - there’s a link in the shownotes - and here’s how Dahlia sums it up:

“There is nothing interesting about nothing happening to a 63-year-old judge. Moreover, the court is, by design, secretive and built of paper, and stories about Merrick Garland’s paper answers to questionnaires will never compete with stories about Donald Trump’s teeny tiny hands. Even the fact that ‘everybody yawns’ when told about a Supreme Court vacancy being blocked in an unprecedented manner in U.S. history isn’t a story. But that doesn’t mean it shouldn’t be.”

First… a followup on a question Lena posed to Adam in Ep 7 regarding the length of time it took for the Rehnquist process.

ADAM: Rehnquist took 49 days, which was actually too short. Important parts of his record didn't come out until after the hearing. And speaking of the da`22ngers of not taking long enough to vet a nominee

This week… our “Kiss Solo Album” series continues with our third edition (We’ll go with the Paul Stanley album), brought to you by Lena Zwarensteyn: the Clarence Thomas nomination of 1991...

Clarence Thomas 1991

My Disclaimer/My Party Factoid: In law school I had to take a theater class and for the final I had to pick a monologue. I chose Anita Hill’s testimony. My professor and I had creative differences regarding my presentation, but thankfully it was pass/fail and I (probably just) passed.

I chose it because I distinctly remember tuning into parts of Justice Thomas’ hearing, and hearing parts of Anita Hill’s testimony. Awkward, dorky and on the cusp of my teens, it struck me and clearly it stuck with me.

So, this is the first confirmation process we’re tackling that involves a Justice currently sitting on the Supreme Court. With respect I continue...

Justice Thomas’ Confirmation: Yes, I watched the movie. And Yes, there’s so much to say. So many different rabbit holes we could go down.

The Backstory:

In 1991, Justice Thurgood Marshall, the first African American appointed to the Supreme Court announced his retirement after serving for 24 years (appointed by D President Lyndon Johnson in 1967). Justice Marshall, who led the NAACP’s litigation fight against racial segregation in Brown v. Board of Education and became a national civil rights leader.

President George HW Bush was responsible for nominating the next Justice and he chose Clarence Thomas.

Obviously, the President was NOT trying to seek to fill the role with someone with a similar proclivity toward the law. And he chose a very ideologically conservative and wildly controversial (esp. w/civil rights community) nominee

Notable b/c there was a Democratic majority in the Senate (57 Ds - 43 Rs). Not notable in terms of history - long history of ideological switches (think O’Connor/Alito for next week!)

This was, in many ways, a signal that filling the seat was the President’s prerogative

However, it was a very deliberate choice to select an African American nominee to replace Justice Marshall; and someone who would, by some measures at least, seem to quell concerns from the civil rights leaders and organizations who were very much watching what was happening, especially after the Bork hearings.

Quick tangent for some backstory: President George HW Bush served only one term, but had 2 Supreme Court nominees confirmed. The first was Justice Souter. On July 20, 1990, Justice William Brennan announced his immediate retirement.

4 days later, David Souter was announced, and he was confirmed on October 2, 1990 in a 90-9 confirmation vote.

Souter was a disappointment to conservatives, and so when they next vacancy arose there were some demands for a more reliable

So when Justice Marshall announced his retirement a year later, George HW Bush could finally get his pick of Clarence Thomas. Now to bring it back to last week, Thomas had been nominated in October 1989 to fill the seat on the U.S. Court of Appeals for the D.C. Circuit judge that was vacated by Robert Bork. In March 1990, he was confirmed in a pretty uneventful process.

So here we are though, with Justice Marshall. It’s June 28, 1991 and Justice Marshall announces his retirement (pending confirmation of a replacement). On July 1, President Bush announces Clarence Thomas to be his nominee.

Judge on D.C. Circuit for 1 year until nominated by President George HW Bush.

Automatically, it’s clear there would be a fight:

This would be the 9th Supreme Court Justice appointed by a Republican President. There were clear signs that a conservative movement was afoot and the President was trying to usher in as many ideologically conservative Justices as possible. Unreliable Souter, aside.

His credentials were a bit lackluster, he was very young at 43 and didn’t have a significant amount of judicial experience from which to evaluate how he might be as a judge or rule. And he would be on the bench for a very very long time most likely.

He had enough of a paper trail that hit on clear issues regarding his views on things like affirmative action and Roe v. Wade.

So the 2 major themes that overlapped in many ways but can also be seen independently:

Race

Gender

ABA: American Bar Association’s recommendation panel splits on whether Thomas is qualified or not, the first time since 1969 the ABA has failed to unanimously recommend a nominee. Twelve panelists find Thomas “qualified,” two find him “not qualified,” and none find him “well qualified.”

Sherpas:

Senator Danforth (R-Mo.): Thomas’ former boss; went to 60 courtesy visits with Thomas

Committee Make Up: 8 Ds (Biden Chair) and 6 Rs (Thurmond, RM); only remaining Senators who were on the Committee then and still in office: now RM Leahy (D-Vt.), now Chairman Grassley (R-Iowa), Sen. Hatch (R-Utah)

Ds in Majority

Biden, Chair - final 7th No vote

Kennedy (MA)

Metzenbaum (OH)

DeConcini (AZ) - voted w/RsLeahy (VT) - led vote against him

Heflin (AL) - conservative southerner, considered key

Simon (IL)

Kohl (WI)

Rs

Thurmond, RM

Hatch (UT)

Simpson (WY)Grassley (IA)

Specter (PA)

Hank Brown (CO)

The Committee, based on this alone, could’ve tanked the whole process. BUT THEY DIDN’T.

Reasons for Concern:

Justice Thomas’ hearing made the Democrats increasingly uncomfortable because of his 1) lack of significant and substantive experience, 2) answers about things like his conservative speeches and writings; his answers to things such as if he ever thought about the constitutionality of Roe v. Wade (where he basically said that he’d have to sit down and write the decision to know how he’d feel about it - despite saying he agreed at one point with the theory that there’s a natural law based right to life).

Most of the hearing revolved around Justice Thomas’ view of natural law

Sen. Leahy asked Thomas about Roe v. Wade since it was decided when he was in law school; Thomas couldn’t recall discussing b/c he was married and didn’t spend much time debating cases. Leahy asked if he ever talked about Roe “only in a very general sense” where you listen but didn’t debate

Some Senators rejected the White House’s strategy for Justice Thomas’ answers - which was to evade all answers, go back to his upbringing.

9/27/1991: Senate Judiciary Committee Vote deadlocks in 7-7.

Despite this, the Committee decided to still send him nomination to the floor just without recommendation of the Committee

Keep in Mind, the Senate was TRYING to settle this before the start of the Supreme Court’s October Term

Nomination went to Senate Floor

Floor vote was scheduled for 10/8/1991. But on 10/5/1991, NPR story broke

10/6/1991: 2 days before the Senate vote scheduled; FBI report leaked to press that included private conversations/reports: Professor Anita Hill had to then tell the Senate Judiciary Committee that Justice Thomas sexually harassed her when they worked together at the Dept. of Education and EEOC - asking out on dates, inappropriate statements about rape/sex with animals/group sex, described sexual interest.

This led to a delayed floor vote b/c Thomas asked time to clear his name; get support for his nomination. They weren’t sure they’d have the votes without time to rebut.

Basically, MORE HEARINGS - AFTER THE COMMITTEE VOTE - happened. Not a normal process at all, but one that was made at the nominee’s request and really was wrenching on so many levels.

10/11/1991: Anita Hill called to testify in front of Committee

Committee held 3 days of hearings.

Hill gave excruciating detail; all public because the details and specificity seemed to matter in convincing people she could be believed

She really wanted to stay silent; didn’t want to make a sexual harassment claim

Others did come forward, but they didn’t end up testifying

Even submitted to a polygraph test, that verified her statements

Thomas adamantly denied

Said he was being subjected to a "high-tech lynching for uppity blacks" by white liberals who were seeking to block a black conservative from taking a seat on the Supreme Court.

Called Hill his "most traitorous adversary" and saying that pro-choice liberals used the scandal against him.

Tried to again discredit Anita Hill as "a left-winger who'd never expressed any religious sentiments whatsoever...and the only reason why she'd held a job in the Reagan administration was because I'd given it to her."[

Hill denied the accusations in an op-ed in the New York Times saying she would not "stand by silently and allow [Justice Thomas], in his anger, to reinvent me".

10/15/1991: U.S. Senate confirms Clarence Thomas by the narrowest margin in the 20th century: 52 to 48.

Despite being barraged by a Committee of all men, Americans got to see this, and workplace harassment was acknowledged, seen by many as very real (don’t ask Sen. Hatch, however; his questions to Anita Hill were, to be kind, offensive, which is a side outcome of how public victim-blaming was/is. From plagiarism to mistaking her source when talking about the name of a porn star Thomas mentioned). Still, it wasn’t considered “THAT BAD.” For many around the country, especially women, however, there was a sigh of relief that someone was publicly talking about workplace sexual harassment, describing common experiences, and not standing down.

Reports of sexual harassment to EEOC increased.

Not a single woman on that Committee: Inspired women and people who support women to run for office; voices mattered - more women ran for office

PUBLIC Hearings - Americans got to see the whole thing and make judgments on their own

Process and timing:

Thomas has described how demeaning the process was: "No job is worth what I've been through — no job. No horror in my life has been so debilitating. Confirm me if you want. Don't confirm me if you are so led."

Justice Thomas talks about how horrible the process was, how grueling it was for him to spend about 100 days going through this process. Right now, we’re doing that and more for Chief Judge Garland.

Adam: Washington Post article describing Justice Thomas’ testimony embracing a right to privacy, Senator DeConcini’s reliance on that testimony, and then Justice Thomas’ opinion rejecting the right to privacy in Lawrence v. Texas.

Tim: SNL's blistering take lampoons the all male Judiciary Committee as being more concerned about Clarence Thomas' pickup techniques... this was super edgy and just blistered a group of men being the arbiters of sexual harassment.

Highlight performances by:

Chris Farley as Howell Heflin

Dana Carvey as Strom Thurmond

Phil Hartman as Ted Kennedy

And future member of the Judiciary committee Al Franken as Paul Simon!

]]>01:11:05cleanAdvice & Consent 08: Will Trump's rise kickstart Garland + Robert Bork 1987Fri, 06 May 2016 11:00:00 +0000On this episode... does the likely Trump nomination help Merrick Garland's chances? And continuing our series on the ghosts of nominations past: Robert Bork 1987.

Ghosts of nominations past: Robert Bork (1987)

A little context: these hearings were within a couple of days away from the bicentennial of the Constitution, and this was frequently referenced throughout. I remember there were a lot of attempts to make 1987 as big as 1976 but it never really got up to that level. Also, there was a Presidential election going on and Judiciary committee chair Joe Biden happened to be running.

Judge Bork was nominated by President Reagan in 1987 to replace Justice Powell and as any listener of this pod surely knows, he was summarily rejected by the Senate 58-42.

He was a highly qualified nominee in the sense he had impeccable credentials: federal appeals court judge, solicitor general, etc.

The thing is you can be very, very talented but have outlier legal points of view that trump your academic and professional qualifications.

Make no mistake, Judge Bork was very political and an idealogue of the first order.

Saturday Night Massacre-- Nixon reportedly offered Bork a SCOTUS seat for being try #3 as Solicitor General to fire Special Prosecutor Archibold Cox when the heat got turned up on the then POTUS. This was a contentious point for Bork's nomination as it appeared blatantly political and possibly unethical.

His legal stances were based in Original Intent - judges shouldn’t go further in interpreting the Const. than the words themselves. Not a “living breathing Constution” kind of guy. For example:

One man one vote? No.

1964 Civil Rights Act? Nope.

Griswold? Eisenstadt? Roe? Privacy generally? No across the board.

Gender equality laws? Ha! No!

You're gay? We've got special rules for your bedroom behavior too.

He was beloved by his fans and bemoaned by those who thought his views were anachronisms. He was the Justin Bieber of SCOTUS noms. A judicial Justin Bieber.

OPPOSITION

Swift and severe. Every left of center group spun up as they learned more about Judge Bork's record. Every right of center group spun up to defend his record.

NAACP ED Benjamin Hooks may have said it best - "we will fight it all the way - until hell freezes over, and then we’ll skate across the ice.”

Judge Bork’s hearing was a debacle for him. Setting aside the weirdness of his video rental habits being leaked to theCity Paper(get your heads out of the gutter, he dug conventional dramas) it was Judge Bork who was his own worst enemy.

I’m also struck by THE COMPLETE LACK DIVERSITY during these hearings… All white men. So many issues were being discussed that were outside the scope of these peoples’ experiences… It was really striking to revisit it 29 years later.

I had forgotten it opened up with a trio of sherpas:

President Gerry Ford brought some instant star value (Go Blue)

Sen. Bob Dole came on as sherpa #2 - a much less genial one than the former POTUS.

And taking on sherpa #3 in the replacement role of the home state Senator but because Bork was a DC guy was MO Sen. John Danforth a former law student of his. Remember Senator Danforth... he makes an appearance next week!

Then Rep. Ham Fish! He said Judge Bork had never been reversed by SCOTUS! So he's GENIUS and TOTALLY mainstream because getting reversed is the only way you know that you're out of the mainstream, right? RIGHT!?

Because this process is well understood by the American people, any nominee selected by a President comes to the Senate with a presumption in his favor. Accordingly, opponents of the nominee must make the case against him.

--

I believe, as I have stated before, that the full Senate should make the final determination on all nominations. The confirmation process should not stop at the committee level. The Constitution requires the advice and consent of the Senate, not simply the opinion of any one committee. I am pleased that both Chairman Biden and the distinguished majority leader, among others, have indicated that they agree that this nomination should be dealt with by the full Senate

In Robert Bork's America, there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork.

https://www.youtube.com/watch?v=GvFLXFCJvJA

Sen. Orrin Hatch (R-UT)

Tried to rebut the Kennedy opening but what stood out more was his view of the Senate's Constitutional role:

The Senate, however, was given a checking function. In the words of Alexander Hamilton, the advice and consent function was to prevent "nepotism" and "unfit characters." The advice and consent function is a checking function, not a license to exert political influence on another branch, not a license to control the outcome of future cases by overriding the President's prerogatives.

Huh. Interesting. Look, I once saw Orrin Hatch at Dulles airport being really really nice to a kid in a wheelchair on a flight to Salt Lake City. Seems like a nice guy. But he's politics through and through and flips on a dime when it comes to SCOTUS nominations.

Lots more from the other Senators and it's all on YouTube.

QUESTIONS

Sen. Biden (D-DE) took Bork on first with questions, particularly probing on whether the Judge found a general right to privacy in the Constitution perGriswold. This is where Bork tried to dodge... rather than say "hell no!" he tried to fudge it by saying Griswold was decided wrong but "who knows... maybe there's another way?" and Biden didn't seem convinced (or anyone else frankly).

Sen. Byrd (D-WV)was Senate Majority Leader running the Senate floor votes so he came in super late, but I thought his opening statement really got to the heart of the issue. It isn't that people had a problem with Original Intent it's the combination of that with a malleable view on stare decisis that was the problem for Bork. The record tended to show he'd have been way more willing to overturn cases of a certain stripe (i.e. civil rights, executive power etc.) in a very predictable (perhaps political?) way.

Sidebar: IMHO to this day, I think Judge Bork would have had a run on SCOTUS if it weren't for the fact that he demonstrably favored substantive conservative outcomes. He tried to dodge that by cloaking Original Intent as neither liberal or conservative (true) but he used it in a way that was demonstrably policy driven. Sen. Byrd was one to note this,

Senator Edward Kennedy (D-MA)just dug into Bork... asked ifGriswoldis no good and there's no Constitutional right to privacy and a state legislature can pass laws in this area willy nilly, what if a state passed a lawcompellingabortions? Or something else where the politics were flipped on their head? Then he pulled out his pocket Constitution and dropped a proverbial mic.

Bork was big on saying "there's privacy all over the Constitution" as a way of deflecting, but his philosophy was the rights were specific and very, VERY narrow. And that's where Kennedy's compulsory abortion line tripped him up.

Paraphrasing: Yo, if you nutballs think there's a right to privacy in the Constitution that protects private conduct in bedrooms then that meansBowers v. Hardwick's upholding of anti-sodomy laws is wrong and that's CLEARLY BANANAS y'all!

Senator Orrin Hatch (R-UT)- ‘MY HAIR IS ON FIRE!!!” The first real moment when the hearing felt anything but polite. Like Sen. Thurmond before him, the questions were super softbally leaders that were more designed to create perfect presentations of a reasonable man with reasonable opinions. Hatch was way off in tone because if you came into the hearing on his questioning you would have thought Kennedy and Biden had him in a rack and thumbscrews beforehand.

Sidebar observation: EVERYONE LOOKS FUNNY. EVERYONE. There was even a question about Judge Bork's awkward beard by an utterly bemused Senator Heflin.

Unisex bathrooms came up in the context of the 14th Amendment with Sen. Deconcini - you might not be too surprised that Judge Bork wasn't a fan of unisex bathrooms.

Answered a question on evolution of his points of view by dropping a lengthy Ben Franklin quote. Very pre-Twitter.

Under questioning from Sen. Specter (then GOPer) Judge Bork defended a 1971 memo in which he suggested there was legal support for separate but equal principles that the Court upheld inPlessy. At the committee, he unequivocally supported the outcome inBrown, but didn't really rebuke that 71 memo. That hurt a lot and was part of a big trend… “Hey I’m a law professor and I need to play around with crazy controversial points of view… but that’s just playing! OF COURSE I’m super mainstream!” He also would protest that when he changed his mind (Civil Rights Act for instance) that it happened and he shouldn’t have had to send out a new release to prove it happened when it did. Problem was, his latter day conversions seemed pretty… Well, latter day. And convenient.

Sen. Howell Heflin tackled privacy in his signature jowly southern drawl. Amazeballs. Bork held firm: one can't derive a general right of privacy from the Constitution. He kind of danced away from abortion which of course was closely tied to the issue.

Strom Thurmond jumped on astare decsisgrenade tossed by Sen. Heflin aboutRoe. Heflin backtracked to ask about it generally. Bork gave a pretty canned answer that had a hole the relative size of a Mack truck could drive through.

Interesting: Bork denied he was agnostic as was reported during the hearings. That came up in Sen. Heflin’s opening remarks… it was a weird issue because it broke in the opposite way one expects in the modern politics. Anyone that mentioned it suggested it was a non-issue either way.

I’m most struck with how easy it would have been for a casual observer to listen to Bork and feel like he was totally reasonable. The presentation and confidence he had was very strong… His paper trail however? Couldn’t run from that.

OTHER TESTIMONY

Several days of testimony followed, but all sides had dug in by then and it’s not clear much changed from the testimony.

OPPOSITION AND COLLAPSE

The hearings hurt Judge Bork generally and didn’t succeed in painting the picture of a mainstream conservative. Sen. Biden was running for President during the hearings and his candidacy collapsed right in the middle of them due in part to a plagiarism charge regarding his speeches.

The Judiciary Committee voted against Judge Bork’s nomination by a vote of 9-5, but as we mentioned on past shows that didn’t end the process, just give the full Senate a “no” recommendation.

Biden led the group of Senators in declaring opposition following the hearings, which led to many Repblicans charging him with running a rigged hearing. Despite this most give him credit for running a fair hearing and credit for framing his opposition away from substantive issues like abortion and more on the big ticket issue of Judge Bork’s originalism being incompatible with mainstream Constitutional thought, particularly his opposition to general unemnumerated privacy rights that the Court held inGriswold.

As it became clear that the nomination was going down, GOP support went silent. This rubbed Judge Bork the wrong way for the rest of his life.

To “Bork” is now a verb in many a dictionary with a use unlike what really happened in ‘87. He really Borked himself by being too extreme and worse… Too professorial (he said he wanted to be on SCOTUS because it would be “an intellectual feast” -- he didn’t get into the serving the country thing). Sen. Kennedy in particular gets flack from the right for the Borking, but he was actually pretty respectful in tone and didn’t ask any question in a gotcha kind of way. It was the answers and how they were delivered that sank Bork. Also, I’m struck that all these tough out of bounds questions were TAME by today’s standards and how they were characterized later by Bork himself as “furious attacks.”

Simply put, you can be a genius and have tons of fans… But that doesn’t automatically make you suitable for the Court. And Judge Bork epitomized that.

The downside of the Bork hearings? Good luck getting real answers out if ANY nominee. Judge Bork pushed the chips all in and revealed his points of view, many well out of the mainstream. The revelation taught later nominees that they had best keep right down the middle as closely as possible… Which led to surprise stealth candidates who, well… Surprised (Justice Souter) and contentless answers from others (Chief Justice Roberts).

This nomination battle was a continuation of the Rehnquist/Scalia hearings and certainly set the table for future nominations. I’ve referred to it as the “original sin” in the past, but I think that’s wrong… I think it was the perfect storm of a brilliant but flawed nominee meeting the new era of SCOTUS nomination scrutiny and probably best marks the beginning of the end of the time when Democrats and Republicans could battle on the Hill then trade stories over a friendly drink at a local pub.

Judge Bork was a Judicial Justin Bieber and he has his beliebers still… And they warm up their baby baby baby’s every time a new nom comes up.

]]>On this episode... does the likely Trump nomination help Merrick Garland's chances? And continuing our series on the ghosts of nominations past: Robert Bork 1987.

A little context: these hearings were within a couple of days away from the bicentennial of the Constitution, and this was frequently referenced throughout. I remember there were a lot of attempts to make 1987 as big as 1976 but it never really got up to that level. Also, there was a Presidential election going on and Judiciary committee chair Joe Biden happened to be running.

Judge Bork was nominated by President Reagan in 1987 to replace Justice Powell and as any listener of this pod surely knows, he was summarily rejected by the Senate 58-42.

He was a highly qualified nominee in the sense he had impeccable credentials: federal appeals court judge, solicitor general, etc.

The thing is you can be very, very talented but have outlier legal points of view that trump your academic and professional qualifications.

Make no mistake, Judge Bork was very political and an idealogue of the first order.

Saturday Night Massacre -- Nixon reportedly offered Bork a SCOTUS seat for being try #3 as Solicitor General to fire Special Prosecutor Archibold Cox when the heat got turned up on the then POTUS. This was a contentious point for Bork's nomination as it appeared blatantly political and possibly unethical.

His legal stances were based in Original Intent - judges shouldn’t go further in interpreting the Const. than the words themselves. Not a “living breathing Constution” kind of guy. For example:

One man one vote? No.

1964 Civil Rights Act? Nope.

Griswold? Eisenstadt? Roe? Privacy generally? No across the board.

Gender equality laws? Ha! No!

You're gay? We've got special rules for your bedroom behavior too.

He was beloved by his fans and bemoaned by those who thought his views were anachronisms. He was the Justin Bieber of SCOTUS noms. A judicial Justin Bieber.

OPPOSITION

Swift and severe. Every left of center group spun up as they learned more about Judge Bork's record. Every right of center group spun up to defend his record.

NAACP ED Benjamin Hooks may have said it best - "we will fight it all the way - until hell freezes over, and then we’ll skate across the ice.”

Judge Bork’s hearing was a debacle for him. Setting aside the weirdness of his video rental habits being leaked to the City Paper (get your heads out of the gutter, he dug conventional dramas) it was Judge Bork who was his own worst enemy.

I’m also struck by THE COMPLETE LACK DIVERSITY during these hearings… All white men. So many issues were being discussed that were outside the scope of these peoples’ experiences… It was really striking to revisit it 29 years later.

I had forgotten it opened up with a trio of sherpas:

President Gerry Ford brought some instant star value (Go Blue)

Sen. Bob Dole came on as sherpa #2 - a much less genial one than the former POTUS.

And taking on sherpa #3 in the replacement role of the home state Senator but because Bork was a DC guy was MO Sen. John Danforth a former law student of his. Remember Senator Danforth... he makes an appearance next week!

Then Rep. Ham Fish! He said Judge Bork had never been reversed by SCOTUS! So he's GENIUS and TOTALLY mainstream because getting reversed is the only way you know that you're out of the mainstream, right? RIGHT!?

Because this process is well understood by the American people, any nominee selected by a President comes to the Senate with a presumption in his favor. Accordingly, opponents of the nominee must make the case against him.

--

I believe, as I have stated before, that the full Senate should make the final determination on all nominations. The confirmation process should not stop at the committee level. The Constitution requires the advice and consent of the Senate, not simply the opinion of any one committee. I am pleased that both Chairman Biden and the distinguished majority leader, among others, have indicated that they agree that this nomination should be dealt with by the full Senate

In Robert Bork's America, there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork.

https://www.youtube.com/watch?v=GvFLXFCJvJA

Sen. Orrin Hatch (R-UT)

Tried to rebut the Kennedy opening but what stood out more was his view of the Senate's Constitutional role:

The Senate, however, was given a checking function. In the words of Alexander Hamilton, the advice and consent function was to prevent "nepotism" and "unfit characters." The advice and consent function is a checking function, not a license to exert political influence on another branch, not a license to control the outcome of future cases by overriding the President's prerogatives.

Huh. Interesting. Look, I once saw Orrin Hatch at Dulles airport being really really nice to a kid in a wheelchair on a flight to Salt Lake City. Seems like a nice guy. But he's politics through and through and flips on a dime when it comes to SCOTUS nominations.

Lots more from the other Senators and it's all on YouTube.

QUESTIONS

Sen. Biden (D-DE) took Bork on first with questions, particularly probing on whether the Judge found a general right to privacy in the Constitution per Griswold. This is where Bork tried to dodge... rather than say "hell no!" he tried to fudge it by saying Griswold was decided wrong but "who knows... maybe there's another way?" and Biden didn't seem convinced (or anyone else frankly).

Sen. Byrd (D-WV) was Senate Majority Leader running the Senate floor votes so he came in super late, but I thought his opening statement really got to the heart of the issue. It isn't that people had a problem with Original Intent it's the combination of that with a malleable view on stare decisis that was the problem for Bork. The record tended to show he'd have been way more willing to overturn cases of a certain stripe (i.e. civil rights, executive power etc.) in a very predictable (perhaps political?) way.

Sidebar: IMHO to this day, I think Judge Bork would have had a run on SCOTUS if it weren't for the fact that he demonstrably favored substantive conservative outcomes. He tried to dodge that by cloaking Original Intent as neither liberal or conservative (true) but he used it in a way that was demonstrably policy driven. Sen. Byrd was one to note this,

Senator Edward Kennedy (D-MA) just dug into Bork... asked if Griswold is no good and there's no Constitutional right to privacy and a state legislature can pass laws in this area willy nilly, what if a state passed a law compelling abortions? Or something else where the politics were flipped on their head? Then he pulled out his pocket Constitution and dropped a proverbial mic.

Bork was big on saying "there's privacy all over the Constitution" as a way of deflecting, but his philosophy was the rights were specific and very, VERY narrow. And that's where Kennedy's compulsory abortion line tripped him up.

Paraphrasing: Yo, if you nutballs think there's a right to privacy in the Constitution that protects private conduct in bedrooms then that means Bowers v. Hardwick's upholding of anti-sodomy laws is wrong and that's CLEARLY BANANAS y'all!

Senator Orrin Hatch (R-UT) - ‘MY HAIR IS ON FIRE!!!” The first real moment when the hearing felt anything but polite. Like Sen. Thurmond before him, the questions were super softbally leaders that were more designed to create perfect presentations of a reasonable man with reasonable opinions. Hatch was way off in tone because if you came into the hearing on his questioning you would have thought Kennedy and Biden had him in a rack and thumbscrews beforehand.

Sidebar observation: EVERYONE LOOKS FUNNY. EVERYONE. There was even a question about Judge Bork's awkward beard by an utterly bemused Senator Heflin.

Unisex bathrooms came up in the context of the 14th Amendment with Sen. Deconcini - you might not be too surprised that Judge Bork wasn't a fan of unisex bathrooms.

Answered a question on evolution of his points of view by dropping a lengthy Ben Franklin quote. Very pre-Twitter.

Under questioning from Sen. Specter (then GOPer) Judge Bork defended a 1971 memo in which he suggested there was legal support for separate but equal principles that the Court upheld in Plessy. At the committee, he unequivocally supported the outcome in Brown, but didn't really rebuke that 71 memo. That hurt a lot and was part of a big trend… “Hey I’m a law professor and I need to play around with crazy controversial points of view… but that’s just playing! OF COURSE I’m super mainstream!” He also would protest that when he changed his mind (Civil Rights Act for instance) that it happened and he shouldn’t have had to send out a new release to prove it happened when it did. Problem was, his latter day conversions seemed pretty… Well, latter day. And convenient.

Sen. Howell Heflin tackled privacy in his signature jowly southern drawl. Amazeballs. Bork held firm: one can't derive a general right of privacy from the Constitution. He kind of danced away from abortion which of course was closely tied to the issue.

Strom Thurmond jumped on a stare decsis grenade tossed by Sen. Heflin about Roe. Heflin backtracked to ask about it generally. Bork gave a pretty canned answer that had a hole the relative size of a Mack truck could drive through.

Interesting: Bork denied he was agnostic as was reported during the hearings. That came up in Sen. Heflin’s opening remarks… it was a weird issue because it broke in the opposite way one expects in the modern politics. Anyone that mentioned it suggested it was a non-issue either way.

I’m most struck with how easy it would have been for a casual observer to listen to Bork and feel like he was totally reasonable. The presentation and confidence he had was very strong… His paper trail however? Couldn’t run from that.

OTHER TESTIMONY

Several days of testimony followed, but all sides had dug in by then and it’s not clear much changed from the testimony.

OPPOSITION AND COLLAPSE

The hearings hurt Judge Bork generally and didn’t succeed in painting the picture of a mainstream conservative. Sen. Biden was running for President during the hearings and his candidacy collapsed right in the middle of them due in part to a plagiarism charge regarding his speeches.

The Judiciary Committee voted against Judge Bork’s nomination by a vote of 9-5, but as we mentioned on past shows that didn’t end the process, just give the full Senate a “no” recommendation.

Biden led the group of Senators in declaring opposition following the hearings, which led to many Repblicans charging him with running a rigged hearing. Despite this most give him credit for running a fair hearing and credit for framing his opposition away from substantive issues like abortion and more on the big ticket issue of Judge Bork’s originalism being incompatible with mainstream Constitutional thought, particularly his opposition to general unemnumerated privacy rights that the Court held in Griswold.

As it became clear that the nomination was going down, GOP support went silent. This rubbed Judge Bork the wrong way for the rest of his life.

To “Bork” is now a verb in many a dictionary with a use unlike what really happened in ‘87. He really Borked himself by being too extreme and worse… Too professorial (he said he wanted to be on SCOTUS because it would be “an intellectual feast” -- he didn’t get into the serving the country thing). Sen. Kennedy in particular gets flack from the right for the Borking, but he was actually pretty respectful in tone and didn’t ask any question in a gotcha kind of way. It was the answers and how they were delivered that sank Bork. Also, I’m struck that all these tough out of bounds questions were TAME by today’s standards and how they were characterized later by Bork himself as “furious attacks.”

Simply put, you can be a genius and have tons of fans… But that doesn’t automatically make you suitable for the Court. And Judge Bork epitomized that.

The downside of the Bork hearings? Good luck getting real answers out if ANY nominee. Judge Bork pushed the chips all in and revealed his points of view, many well out of the mainstream. The revelation taught later nominees that they had best keep right down the middle as closely as possible… Which led to surprise stealth candidates who, well… Surprised (Justice Souter) and contentless answers from others (Chief Justice Roberts).

This nomination battle was a continuation of the Rehnquist/Scalia hearings and certainly set the table for future nominations. I’ve referred to it as the “original sin” in the past, but I think that’s wrong… I think it was the perfect storm of a brilliant but flawed nominee meeting the new era of SCOTUS nomination scrutiny and probably best marks the beginning of the end of the time when Democrats and Republicans could battle on the Hill then trade stories over a friendly drink at a local pub.

Judge Bork was a Judicial Justin Bieber and he has his beliebers still… And they warm up their baby baby baby’s every time a new nom comes up.

]]>01:01:12noAdvice & Consent 07: Nominations Past Vol. 1 - Rehnquist/Powell 1971Thu, 28 Apr 2016 11:00:00 +0000On this episode… With the airing
of Confirmation on HBO, the ghosts of nominations past have
been brought back to the public eye. The next several episodes
we’ll talk about some of them.

April 28, 2016...

Lena:

Today’s the day CJ Garland should have started his confirmation
hearing. 42 days: that’s the number of days on average for the past
30 years that Supreme Court nominees have waited for a Senate
Judiciary Committee hearing. And since President Obama nominated
Chief Judge Merrick Garland on March 16, that means he should have
started the confirmation process April 28th (today)!

Nominations Past Vol. 1 - Rehnquist/Powell 1971

]]>On this episode… With the airing
of Confirmation on HBO, the ghosts of nominations past have
been brought back to the public eye. The next several episodes
we’ll talk about some of them.

April 28, 2016...

Lena:

Today’s the day CJ Garland should have started his confirmation
hearing. 42 days: that’s the number of days on average for the past
30 years that Supreme Court nominees have waited for a Senate
Judiciary Committee hearing. And since President Obama nominated
Chief Judge Merrick Garland on March 16, that means he should have
started the confirmation process April 28th (today)!

An all Mic Drop edition

Lena: Donald Trump's "WHAT?" moment.“I’m going to announce that these are the judges, in no particular order, that I’m going to put up,” he told The Washington Post last week. “And I’m going to guarantee it. … Because people are worried that, oh, maybe he’ll put the wrong judge in.”

As people who followed the Iowa Senate race last year know, Grassley is not a lawyer. No requirement that Judiciary Committee members be lawyers. Sen. Dianne Feinstein, another long-time member of the Committee, is not a lawyer. But it IS unusual for a Judiciary Committee chairman not to be a lawyer. I went back to the Wilson administration (using Wikipedia, admittedly), the first time the Committee held a hearing on a nominee, and ALL the other chairmen (all men) were lawyers.

Not to say they were all winners. From 1956-1987, the Committee had a segregationist as chair, excluding 3 years in the 70s when Ted Kennedy was chair.

It is possible to learn a lot about the law by being involved in legal issues for years, but Grassley has had other priorities, Ike oversight, chairing Finance Committee.

Lena: Donald Trump's "WHAT?" moment.“I’m going to announce that these are the judges, in no particular order, that I’m going to put up,” he told The Washington Post last week. “And I’m going to guarantee it. … Because people are worried that, oh, maybe he’ll put the wrong judge in.”

As people who followed the Iowa Senate race last year know, Grassley is not a lawyer. No requirement that Judiciary Committee members be lawyers. Sen. Dianne Feinstein, another long-time member of the Committee, is not a lawyer. But it IS unusual for a Judiciary Committee chairman not to be a lawyer. I went back to the Wilson administration (using Wikipedia, admittedly), the first time the Committee held a hearing on a nominee, and ALL the other chairmen (all men) were lawyers.

Not to say they were all winners. From 1956-1987, the Committee had a segregationist as chair, excluding 3 years in the 70s when Ted Kennedy was chair.

It is possible to learn a lot about the law by being involved in legal issues for years, but Grassley has had other priorities, Ike oversight, chairing Finance Committee.

Everywhere: George Mason makes an acronym error with its new law school. Whoops.

Today’s Topic: Reacting to the GOP Senators' “nevermind, we take it all back”

Judge Garland has met with 17 Senators as of today, the latest being Judiciary Committee member Sen. Whitehouse (D-RI). However, the cracks we saw last week in the GOP seem to have been puttied and plastered over as a few have backtracked on even meeting President Obama’s Supreme Court nominee.

From NYT:

Senators Jerry Moran of Kansas and Lisa Murkowski of Alaska have reversed themselves and say they now back the decision made by Senator Charles E. Grassley of Iowa, chairman of the Judiciary Committee, not to hold hearings.

---

Carrie Severino, chief counsel for the Judicial Crisis Network: "These meetings are non-events, no matter how badly the White House wishes the opposite were true," she said in a statement. "The only reason we hear anything about these courtesy meetings is that the White House is desperate to spin every act of political theater into a sign of life for the nomination."

Despite the hyperbole, Senator Collins noted on MSNBC that 14 GOP senators are willing to meet with Judge Garland, stating "I view that as an evolution." What does this mean for the nomination? Is this a deathblow, or just part of the political back and forth that is just heating up as the issue percolates back to the Senators’ home states?

Everywhere: George Mason makes an acronym error with its new law school. Whoops.

Today’s Topic: Reacting to the GOP Senators' “nevermind, we take it all back”

Judge Garland has met with 17 Senators as of today, the latest being Judiciary Committee member Sen. Whitehouse (D-RI). However, the cracks we saw last week in the GOP seem to have been puttied and plastered over as a few have backtracked on even meeting President Obama’s Supreme Court nominee.

From NYT:

Senators Jerry Moran of Kansas and Lisa Murkowski of Alaska have reversed themselves and say they now back the decision made by Senator Charles E. Grassley of Iowa, chairman of the Judiciary Committee, not to hold hearings.

---

Carrie Severino, chief counsel for the Judicial Crisis Network: "These meetings are non-events, no matter how badly the White House wishes the opposite were true," she said in a statement. "The only reason we hear anything about these courtesy meetings is that the White House is desperate to spin every act of political theater into a sign of life for the nomination."

Despite the hyperbole, Senator Collins noted on MSNBC that 14 GOP senators are willing to meet with Judge Garland, stating "I view that as an evolution." What does this mean for the nomination? Is this a deathblow, or just part of the political back and forth that is just heating up as the issue percolates back to the Senators’ home states?

Today’s Topic: Is everyone acting Constitutionally around here?

ARTICLE II, SECTION 2

[The President] shall nominate, and by and with the advice and consent of the Senate… judges of the Supreme Court...

POTUS “shall” make a nomination when there’s a vacancy. Check.

What specifically does Advice and Consent mean? Is the Senate acting in bounds? The Constitution is a tad vague on this point:

ARTICLE I, SECTION 5

Each House may determine the rules of its proceedings...

And that’s the rub.

Tim: everyone’s been Constitutionally fine up til now, but the Senate is taking the obstructionist role on this. Sadly there’s nothing but the political process to hold them accountable, and that's not fast.

Adam: Most Americans who care about this stuff laugh at British people who say they have an unwritten constitution based on set of norms. Some things aren't done. At times like this, we see just how much of our own Constitution is unwritten.

But because our Constitution is written, those norms are subject to change. E.g., when Andrew Jackson decided veto could be used for policy disagreement, when Senate decided 50 years ago never to confirm a judge without a hearing, when FDR accidentally set the permanent number of justices at 9.

Lena: many Senators aren’t acting according to the Constitution - text or spirit - by saying that doing nothing is a version of “advice and consent.” I believe there’s an affirmative duty, certainly according to custom and tradition, Senate’s own rules.

Sure, not all scholars agree there’s an affirmative duty for the Senators to do this, but for the leadership - who controls schedules - to shut down the entire process so that not a single Senator can really act is unprecedented. Unwise.

At least - even if not unconstitutional - this harms our constitutional representative democracy. Sets a really dangerous precedent. If can just hold out on SCOTUS, other cabinet positions for duration of presidency?

No remedy for this. Just the public holding them accountable.

Precedent for rejection

“The twentieth century brought a significant shift in the balance of power between Congress and the presidency. As the nation moved to world-power status, the chief executive assumed greater authority. This shift became apparent in the smaller number of appointments contested in the Senate, particularly when its majorities were of the same party as the president. From 1897 to 1955, the presidency and the Senate were in the hands of the same party for all but four years (1919-1921 and 1947-1949). During the century's first nine decades, the Senate would reject only three cabinet nominees and five Supreme Court justices. Of these eight rejections, five occurred during periods of divided party control.”

“Fourth Circuit Chief Judge John J. Parker, a prominent and distinguished North Carolina Republican, was the first Supreme Court nominee in the twentieth century to be rejected. The battle focused on the nominee's judicial record, rather than his personal competence. Powerful opposition from the American Federation of Labor and the National Association for the Advancement of Colored People, portraying him as unfriendly to labor and minorities, caused his defeat by a two-vote margin on May 7, 1930.”

I think maybe there is the thinnest reed of constitutional responsibility in the Advice & Consent Clause for the Senate to do more than just say “WE WILL DO NOTHING,” but there’s not much about the modern confirmation process that is governed by the Constitution or constitutional law. There are a lot of democratic and historical norms that the Republican Senate leadership is flouting, and that does have implications that could lead to a constitutional crisis, but I’m not comfortable saying that this incredibly destructive obstruction is unconstitutional.

Senate Judiciary Committee Democrats

NOTE: from Chris Geidner at Buzzfeed, quoting Judiciary Cmte. Dems’ letter to Republican leaders, and including a really nice chart: “Since Committee hearings began in 1916, every pending Supreme Court nominee has received a hearing, except 9 nominees who were all confirmed within 11 days,” Senate Democrats on the Judiciary Committee wrote on Monday. According to the average time it’s taken to confirm nominees in the past, the Democrats write that hearings for Garland should begin April 27, with a vote of the Judiciary Committee on May 12.

Mic Drop

Tim: Justice Kennedy was nominated shortly before the beginning of President Reagan’s last term. There was a relatively wide open election where both parties had a shot at the White House, and the vacancy was sudden and unexpected. Honest question: when between November 30th of the penultimate year of a presidency - the date Kennedy was nominated by President Reagan - and March 16th - the date Judge Garland was nominated by President Obama, do “the voters” in the upcoming election get a say in the selection of the nominee, in the parlance of the current Republican Senate leadership?

Dan: As promised, I’m going back to the deep and nourishing well of Dahlia Lithwick’s Facebook comments. This is a brief one, but it’s so simple and gets extra points for a gourmet food reference. Writing about today’s request for additional briefing in Zubick v. Burwell, which commentators uniformly believe is a sign that the Court is looking for a way out of a 4-4 split, Scott Lemieux (political scientist & Contributing Writer at The Week Magazine), writes:

“I think we should do our job,” Kirk told reporters, echoing Senate Democrats who have urged Republicans to consider Garland’s nomination. “We need open-minded, rational responsible people to keep an open mind to make sure the process works. I think when you say we aren’t gonna meet with him, it’s too close-minded.”

[The President] shall nominate, and by and with the advice and consent of the Senate… judges of the Supreme Court...

POTUS “shall” make a nomination when there’s a vacancy. Check.

What specifically does Advice and Consent mean? Is the Senate acting in bounds? The Constitution is a tad vague on this point:

ARTICLE I, SECTION 5

Each House may determine the rules of its proceedings...

And that’s the rub.

Tim: everyone’s been Constitutionally fine up til now, but the Senate is taking the obstructionist role on this. Sadly there’s nothing but the political process to hold them accountable, and that's not fast.

Adam: Most Americans who care about this stuff laugh at British people who say they have an unwritten constitution based on set of norms. Some things aren't done. At times like this, we see just how much of our own Constitution is unwritten.

But because our Constitution is written, those norms are subject to change. E.g., when Andrew Jackson decided veto could be used for policy disagreement, when Senate decided 50 years ago never to confirm a judge without a hearing, when FDR accidentally set the permanent number of justices at 9.

Lena: many Senators aren’t acting according to the Constitution - text or spirit - by saying that doing nothing is a version of “advice and consent.” I believe there’s an affirmative duty, certainly according to custom and tradition, Senate’s own rules.

Sure, not all scholars agree there’s an affirmative duty for the Senators to do this, but for the leadership - who controls schedules - to shut down the entire process so that not a single Senator can really act is unprecedented. Unwise.

At least - even if not unconstitutional - this harms our constitutional representative democracy. Sets a really dangerous precedent. If can just hold out on SCOTUS, other cabinet positions for duration of presidency?

No remedy for this. Just the public holding them accountable.

Precedent for rejection

“The twentieth century brought a significant shift in the balance of power between Congress and the presidency. As the nation moved to world-power status, the chief executive assumed greater authority. This shift became apparent in the smaller number of appointments contested in the Senate, particularly when its majorities were of the same party as the president. From 1897 to 1955, the presidency and the Senate were in the hands of the same party for all but four years (1919-1921 and 1947-1949). During the century's first nine decades, the Senate would reject only three cabinet nominees and five Supreme Court justices. Of these eight rejections, five occurred during periods of divided party control.”

“Fourth Circuit Chief Judge John J. Parker, a prominent and distinguished North Carolina Republican, was the first Supreme Court nominee in the twentieth century to be rejected. The battle focused on the nominee's judicial record, rather than his personal competence. Powerful opposition from the American Federation of Labor and the National Association for the Advancement of Colored People, portraying him as unfriendly to labor and minorities, caused his defeat by a two-vote margin on May 7, 1930.”

I think maybe there is the thinnest reed of constitutional responsibility in the Advice & Consent Clause for the Senate to do more than just say “WE WILL DO NOTHING,” but there’s not much about the modern confirmation process that is governed by the Constitution or constitutional law. There are a lot of democratic and historical norms that the Republican Senate leadership is flouting, and that does have implications that could lead to a constitutional crisis, but I’m not comfortable saying that this incredibly destructive obstruction is unconstitutional.

Senate Judiciary Committee Democrats

NOTE: from Chris Geidner at Buzzfeed, quoting Judiciary Cmte. Dems’ letter to Republican leaders, and including a really nice chart: “Since Committee hearings began in 1916, every pending Supreme Court nominee has received a hearing, except 9 nominees who were all confirmed within 11 days,” Senate Democrats on the Judiciary Committee wrote on Monday. According to the average time it’s taken to confirm nominees in the past, the Democrats write that hearings for Garland should begin April 27, with a vote of the Judiciary Committee on May 12.

Mic Drop

Tim: Justice Kennedy was nominated shortly before the beginning of President Reagan’s last term. There was a relatively wide open election where both parties had a shot at the White House, and the vacancy was sudden and unexpected. Honest question: when between November 30th of the penultimate year of a presidency - the date Kennedy was nominated by President Reagan - and March 16th - the date Judge Garland was nominated by President Obama, do “the voters” in the upcoming election get a say in the selection of the nominee, in the parlance of the current Republican Senate leadership?

Dan: As promised, I’m going back to the deep and nourishing well of Dahlia Lithwick’s Facebook comments. This is a brief one, but it’s so simple and gets extra points for a gourmet food reference. Writing about today’s request for additional briefing in Zubick v. Burwell, which commentators uniformly believe is a sign that the Court is looking for a way out of a 4-4 split, Scott Lemieux (political scientist & Contributing Writer at The Week Magazine), writes:

“I think we should do our job,” Kirk told reporters, echoing Senate Democrats who have urged Republicans to consider Garland’s nomination. “We need open-minded, rational responsible people to keep an open mind to make sure the process works. I think when you say we aren’t gonna meet with him, it’s too close-minded.”

]]>36:31cleanAdvice & Consent 02: A shorthanded Supreme CourtThu, 24 Mar 2016 14:01:34 +0000On the second edition of Advice & Consent... the ragtag gang of the usual suspects tackles what it means for American jurisprudence and policy to have a shorthanded Supreme Court for an extended period of time, plus more on the reactions to Judge Garland's nomination.

An early review of Judge Garland’s cases

In general, Garland’s dissents reinforce what is apparent from his majority opinions — that he is deferential to federal agencies, protective of press freedom, more open than some of his colleagues to a broader definition of what constitutes criminal behavior.

In his appeals court decisions, Judge Garland has often been sympathetic to prosecutors’ arguments, and he has taken a legal approach that tends to help labor unions. According to the blog OnLabor, Judge Garland upheld National Labor Relations Board findings that employers had committed unfair labor practices in 18 out of 22 majority opinions.

A shorthanded Supreme Court - what does that mean for US law and policy?

Tim: The biggest issue I see with an extended shorthanded Supreme Court is that our federal judiciary is incapable of resolving Circuit splits, and that’s one of the biggest roles SCOTUS holds. It has a secondary impact of failing to resolve appeals properly, leaving the lower court holdings as the final say. So, we have a SCOTUS that runs, but it’s hobbled. The Court has an odd number of Justices for a reason…

Adam: We have our first 4-4 decision. It’s in a case involving a long-standing federal rule that banks can’t require spouses to guaranty a loan as a condition of writing the loan. Most federal courts have gone along with it, but not the Eighth Circuit, which covers a number of midwestern states. Now, there is no uniformity. Banks are barred in most states from doing this, but not in states covered by the Eighth Circuit.

Even more interesting, SCOTUS already seems to be shying away from its role. Three cases this week in which the Court decided less than it seemed it might--a case involving whether a guy can use a hovercraft in Alaska National Parks (big deal in AK) (http://www.supremecourt.gov/opinions/15pdf/14-1209_kifl.pdf), a case about whether a class action claiming Tyson’s Food owed millions in unpaid overtime (http://www.scotusblog.com/2016/03/opinion-analysis-group-lawsuits-get-a-modest-boost/#more-240381), and a case asking whether stun guns are protected by the Second Amendment (http://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf ). Each of those cases decided a relatively small part of the case and left it to lower courts to figure out what to do. So the hovercraft guy doesn’t know if he can power up his vehicle, people don’t know if they can carry stun guns around, and Tyson’s employees don’t know if they’re gonna be paid overtime even though the Court decided each of their cases. That’s often a sign of a Court that’s unable to get make a real decision and just punts on the issue. Leaves law unsettled. Just reading tea leaves, but I suspect that’s what’s going on.

Also, It has agreed to hear just one new case since Scalia died. I checked the three previous years and in that same time period (taking leap year into account), the Court agreed to hear 5 cases last year, 7 the year before, and 11 the year before that). Could be coincidence; the one case they agreed to hear was a big one, Samsung v. Apple regarding patent infringement. But if justices are purposely rejecting cases because they are unsure of how a 4-4 court will deal with them, it’s skewing our law already. Example: The Court has turned down a bunch of appeals by state officials where lower federal courts have thrown out state-court convictions (habeas cases). Surely, this must upset law-and-order conservatives.

Lena: Interesting to hear the Justices say that they can function just fine with 8. The integrity and independence of the Court is crucial, and I think the Justices are trying to publicly display confidence in their institution.

Justice Alito:

"We will deal with it," Alito told an audience at Georgetown Law, pointing out that there is nothing in the Constitution that specifies the size of the court.

“we’ll do our work,” Breyer said during an interview (by NBC News correspondent Pete Williams as part of a forum for Supreme Court fellows). “For the most part, it will not change.”

While some experts have predicted that the court will be stymied by being divided 4-4 in key cases, Breyer downplayed that possibility.

“The cases come along. Contrary to what a lot of people think, half of our cases are unanimous. The number of 5-4 cases in a typical year is around 20 percent,” observed Breyer, an appointee of President Bill Clinton.

“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”

“We don’t work as Democrats or Republicans,” the chief justice said, “and I think it’s a very unfortunate impression the public might get from the confirmation process.”

Mic Drop

2 - My mic drop every week is almost definitely going to be something from the great Dahlia Lithwick’s Facebook feed. (say who Dahlia is in 1 sentence). This week: Merrick Garland, always winning. Apparently the Chicago Tribune has no editor, because somehow they published a fairly long reflection about the trials and tribulations about middle school friendship… except it’s just the author’s story about how he rode the bus with Merrick Garland. He asked the young Merrick what grades he got. Merrick told him he got As. Young Merrick did not ask the young Eisenhammer what he got. Then, next thing you know it, Young Merrick and Young Eisenhammer face off against one another in an epic showdown, as Current Eisenhammer puts it:

Then came the relay race that likely ended my budding closeness with Merrick. I've not thought back about that day until now — with Merrick being under consideration for the U.S. Supreme Court.

Eisenhammer goes into great detail about how he was making up ground on Garland and about to overtake him to win the race, when Young Garland allegedly cut to the left in front of Young Eisenhammer, causing YOung Eisenhammer to stumble and thus lose the race. Why is this important? Only to show the ridiculous things that will get published during the course of a Supreme Court nomination. Here are Eisenhammer’s final, profound conclusions:

Still, with Merrick's name in the spotlight, I wonder about a few things: Did Merrick Garland get away with something during that relay race? Was it intentional? Or does he just know how to win?

Fifty years later, it hardly matters.

But that relay race taught me a lesson about Merrick Garland — and one that I witnessed during that earlier bus ride.

Adam: More on precedents. Due to a variety of circumstances, including times when either the GOP or the Democrats were strong majority parties in Congress, the last time a Republican Senate dealt with a Democratic president’s nominees was in when presidents had names like Grover Cleveland and Supreme Court justices had names like Lucius Quintus Cincinnatus Lamar II. That may explain their novel strategy so far. But if you think that’s strange, trivia questions for you: When was the last time a Democrat appointed a Chief Justice? Which president and who was the nominee?

Lena: So I’m likely to bore someone with conversation about the structure of our gov’t and our Constitution. One idea that I’ve been thinking about is one that Tim Burns, an attorney in private practice in Madison (and an ACS Board Member) published on Saturday:

Republican-appointed justices hold key to ending constitutional crisis: The four Republican-appointed Supreme Court justices can check the Republican Senate from unconstitutionally waiting for the next Republican president to replace Justice Antonin Scalia. Any one of those justices can do so by sending to the president a letter saying he will resign at the end of the current Supreme Court session unless the Senate fulfills its constitutional obligation of advice and consent. Faced with such a letter designed to thwart their efforts to politicize the court, the Republican Senate likely will see the wisdom of fulfilling its duty and allowing Obama to fill the vacancy. Such a letter is fully consonant with each Supreme Court justice's oath to defend the Constitution.

Tim: Less shorthanded Supreme Court, more pop culture bleed into the process! After the nomination announcement, Twitter blew up a little bit when smart people rearranged the letters of “Merrick Garland” and realized it spelled “Kendrick Lamar.” The Internets exploded and the conspiracy was revealed.

]]>On the second edition of Advice & Consent... the ragtag gang of the usual suspects tackles what it means for American jurisprudence and policy to have a shorthanded Supreme Court for an extended period of time, plus more on the reactions to Judge Garland's nomination.

In general, Garland’s dissents reinforce what is apparent from his majority opinions — that he is deferential to federal agencies, protective of press freedom, more open than some of his colleagues to a broader definition of what constitutes criminal behavior.

In his appeals court decisions, Judge Garland has often been sympathetic to prosecutors’ arguments, and he has taken a legal approach that tends to help labor unions. According to the blog OnLabor, Judge Garland upheld National Labor Relations Board findings that employers had committed unfair labor practices in 18 out of 22 majority opinions.

A shorthanded Supreme Court - what does that mean for US law and policy?

Tim: The biggest issue I see with an extended shorthanded Supreme Court is that our federal judiciary is incapable of resolving Circuit splits, and that’s one of the biggest roles SCOTUS holds. It has a secondary impact of failing to resolve appeals properly, leaving the lower court holdings as the final say. So, we have a SCOTUS that runs, but it’s hobbled. The Court has an odd number of Justices for a reason…

Adam: We have our first 4-4 decision. It’s in a case involving a long-standing federal rule that banks can’t require spouses to guaranty a loan as a condition of writing the loan. Most federal courts have gone along with it, but not the Eighth Circuit, which covers a number of midwestern states. Now, there is no uniformity. Banks are barred in most states from doing this, but not in states covered by the Eighth Circuit.

Even more interesting, SCOTUS already seems to be shying away from its role. Three cases this week in which the Court decided less than it seemed it might--a case involving whether a guy can use a hovercraft in Alaska National Parks (big deal in AK) (http://www.supremecourt.gov/opinions/15pdf/14-1209_kifl.pdf), a case about whether a class action claiming Tyson’s Food owed millions in unpaid overtime (http://www.scotusblog.com/2016/03/opinion-analysis-group-lawsuits-get-a-modest-boost/#more-240381), and a case asking whether stun guns are protected by the Second Amendment (http://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf ). Each of those cases decided a relatively small part of the case and left it to lower courts to figure out what to do. So the hovercraft guy doesn’t know if he can power up his vehicle, people don’t know if they can carry stun guns around, and Tyson’s employees don’t know if they’re gonna be paid overtime even though the Court decided each of their cases. That’s often a sign of a Court that’s unable to get make a real decision and just punts on the issue. Leaves law unsettled. Just reading tea leaves, but I suspect that’s what’s going on.

Also, It has agreed to hear just one new case since Scalia died. I checked the three previous years and in that same time period (taking leap year into account), the Court agreed to hear 5 cases last year, 7 the year before, and 11 the year before that). Could be coincidence; the one case they agreed to hear was a big one, Samsung v. Apple regarding patent infringement. But if justices are purposely rejecting cases because they are unsure of how a 4-4 court will deal with them, it’s skewing our law already. Example: The Court has turned down a bunch of appeals by state officials where lower federal courts have thrown out state-court convictions (habeas cases). Surely, this must upset law-and-order conservatives.

Lena: Interesting to hear the Justices say that they can function just fine with 8. The integrity and independence of the Court is crucial, and I think the Justices are trying to publicly display confidence in their institution.

Justice Alito:

"We will deal with it," Alito told an audience at Georgetown Law, pointing out that there is nothing in the Constitution that specifies the size of the court.

“we’ll do our work,” Breyer said during an interview (by NBC News correspondent Pete Williams as part of a forum for Supreme Court fellows). “For the most part, it will not change.”

While some experts have predicted that the court will be stymied by being divided 4-4 in key cases, Breyer downplayed that possibility.

“The cases come along. Contrary to what a lot of people think, half of our cases are unanimous. The number of 5-4 cases in a typical year is around 20 percent,” observed Breyer, an appointee of President Bill Clinton.

“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”

“We don’t work as Democrats or Republicans,” the chief justice said, “and I think it’s a very unfortunate impression the public might get from the confirmation process.”

2 - My mic drop every week is almost definitely going to be something from the great Dahlia Lithwick’s Facebook feed. (say who Dahlia is in 1 sentence). This week: Merrick Garland, always winning. Apparently the Chicago Tribune has no editor, because somehow they published a fairly long reflection about the trials and tribulations about middle school friendship… except it’s just the author’s story about how he rode the bus with Merrick Garland. He asked the young Merrick what grades he got. Merrick told him he got As. Young Merrick did not ask the young Eisenhammer what he got. Then, next thing you know it, Young Merrick and Young Eisenhammer face off against one another in an epic showdown, as Current Eisenhammer puts it:

Then came the relay race that likely ended my budding closeness with Merrick. I've not thought back about that day until now — with Merrick being under consideration for the U.S. Supreme Court.

Eisenhammer goes into great detail about how he was making up ground on Garland and about to overtake him to win the race, when Young Garland allegedly cut to the left in front of Young Eisenhammer, causing YOung Eisenhammer to stumble and thus lose the race. Why is this important? Only to show the ridiculous things that will get published during the course of a Supreme Court nomination. Here are Eisenhammer’s final, profound conclusions:

Still, with Merrick's name in the spotlight, I wonder about a few things: Did Merrick Garland get away with something during that relay race? Was it intentional? Or does he just know how to win?

Fifty years later, it hardly matters.

But that relay race taught me a lesson about Merrick Garland — and one that I witnessed during that earlier bus ride.

Adam: More on precedents. Due to a variety of circumstances, including times when either the GOP or the Democrats were strong majority parties in Congress, the last time a Republican Senate dealt with a Democratic president’s nominees was in when presidents had names like Grover Cleveland and Supreme Court justices had names like Lucius Quintus Cincinnatus Lamar II. That may explain their novel strategy so far. But if you think that’s strange, trivia questions for you: When was the last time a Democrat appointed a Chief Justice? Which president and who was the nominee?

Lena: So I’m likely to bore someone with conversation about the structure of our gov’t and our Constitution. One idea that I’ve been thinking about is one that Tim Burns, an attorney in private practice in Madison (and an ACS Board Member) published on Saturday:

Republican-appointed justices hold key to ending constitutional crisis: The four Republican-appointed Supreme Court justices can check the Republican Senate from unconstitutionally waiting for the next Republican president to replace Justice Antonin Scalia. Any one of those justices can do so by sending to the president a letter saying he will resign at the end of the current Supreme Court session unless the Senate fulfills its constitutional obligation of advice and consent. Faced with such a letter designed to thwart their efforts to politicize the court, the Republican Senate likely will see the wisdom of fulfilling its duty and allowing Obama to fill the vacancy. Such a letter is fully consonant with each Supreme Court justice's oath to defend the Constitution.

Tim: Less shorthanded Supreme Court, more pop culture bleed into the process! After the nomination announcement, Twitter blew up a little bit when smart people rearranged the letters of “Merrick Garland” and realized it spelled “Kendrick Lamar.” The Internets exploded and the conspiracy was revealed.

]]>29:42cleanAdvice & Consent 01: It’s Merrick Garland and McConnell’s gonna McConnellThu, 17 Mar 2016 15:07:47 +0000It's nomination season, so the ragtag gang of the usual suspects returns with a new podcast: Advice & Consent. For those that followed the Roberts and Alito nominations about a decade ago, you may remember the Supreme Court Watch podcast. This show is much in the same vein, although it's independent of any organization or entity. We come at things from a progressive/liberal point of view but we're also committed to having a skeptic's eye for everything in the process.

The Chatter

NYT: A New Bork Battle?The president might even say: Remember Robert Bork? Treat my nominee in the same way. Have a conversation and let the public in on it. Of course the president and his allies know that’s exactly the public conversation that the Republicans fear, because it was clear from the first moment that any Obama nominee would inhabit the constitutional mainstream much more securely than either Judge Bork or Justice Scalia — whose “originalist” philosophy never gained more than a toehold at the court — ever did.

NYT endorsement of the nominationIf you tried to create the ideal moderate Supreme Court nominee in a laboratory, it would be hard to do better than Judge Merrick Garland…Mr. Obama has picked a strong nominee, who won bipartisan support in his confirmation to the appeals court. If the Republicans refuse to accept him, they will face one of two scenarios: a nominee selected by Hillary Clinton, who may well be more liberal, or one chosen by President Donald Trump — a racist, vulgar demagogue who many Republicans have said is unfit to run the country.

NPR: Merrick Garland Has A Reputation Of Collegiality, Record Of Republican SupportGarland has a lengthy record on the D.C. circuit court, but that court deals mainly with regulatory issues and not hot-button social issues of the day, such as abortion and gay rights. That has served as a confirmation advantage for previous nominees from the appeals court, and it likely will for Garland, too.---On the appeals court, Garland has been a moderate liberal, with a definite pro-prosecution bent in criminal cases. Indeed, his views in the area of criminal law are considerably more conservative than those of the man he would replace, Justice Antonin Scalia.But Garland also has been a persuasive voice for liberals, managing to bring conservatives over to his side on issues ranging from the environment to national security. For example, in a case involving Chinese Uighurs detained at Guantanamo Bay, Cuba, Garland asked the Justice Department for the particulars of its evidence and then wrote an opinion for himself and two conservative judges that concluded that the Bush administration's claim that they were enemy combatants was utterly unsupported by the evidence.

Rick Hasen at ElectionLawBlog:I have suggested (in the last chapter of Plutocrats United) that one way to compromise on SCOTUS nominees is an 18 year term limit. Appointing someone who is 63 moves in that direction. It gives the President a win, but one which as a matter of probability and actuary tables won’t be on the Court as long. It is a way for Obama to say that he could have reached for greater power over SCOTUS, but compromised.

In short, Garland’s age, which may make some liberals oppose his nomination, may be precisely what is attractive to the President who actually wants to appoint someone to #SCOTUS, and not just put up the human pinata.

Future episodes

First of all... they'll be shorter and closer to "single topic" shows than this first episode monstrosity.

A deeper dive on Judge Garland's record.

Are the Republicans at all correct with their stance on nominations at this time in a presidency (hint: no).

How much is the Court really going to change going from Justice Scalia to a Justice Garland?

A look back on Justice Scalia's legacy.

Adam goes Rain Man on the Senate Rules.

In retrospect, did the Dems ever make a tactical error with past stances on nominations and the nuclear option?

]]>It's nomination season, so the ragtag gang of the usual suspects returns with a new podcast: Advice & Consent. For those that followed the Roberts and Alito nominations about a decade ago, you may remember the Supreme Court Watch podcast. This show is much in the same vein, although it's independent of any organization or entity. We come at things from a progressive/liberal point of view but we're also committed to having a skeptic's eye for everything in the process.
Canvassing the Reactions & Spins

NYT: A New Bork Battle?The president might even say: Remember Robert Bork? Treat my nominee in the same way. Have a conversation and let the public in on it. Of course the president and his allies know that’s exactly the public conversation that the Republicans fear, because it was clear from the first moment that any Obama nominee would inhabit the constitutional mainstream much more securely than either Judge Bork or Justice Scalia — whose “originalist” philosophy never gained more than a toehold at the court — ever did.

NYT endorsement of the nominationIf you tried to create the ideal moderate Supreme Court nominee in a laboratory, it would be hard to do better than Judge Merrick Garland…Mr. Obama has picked a strong nominee, who won bipartisan support in his confirmation to the appeals court. If the Republicans refuse to accept him, they will face one of two scenarios: a nominee selected by Hillary Clinton, who may well be more liberal, or one chosen by President Donald Trump — a racist, vulgar demagogue who many Republicans have said is unfit to run the country.

NPR: Merrick Garland Has A Reputation Of Collegiality, Record Of Republican SupportGarland has a lengthy record on the D.C. circuit court, but that court deals mainly with regulatory issues and not hot-button social issues of the day, such as abortion and gay rights. That has served as a confirmation advantage for previous nominees from the appeals court, and it likely will for Garland, too.---On the appeals court, Garland has been a moderate liberal, with a definite pro-prosecution bent in criminal cases. Indeed, his views in the area of criminal law are considerably more conservative than those of the man he would replace, Justice Antonin Scalia.But Garland also has been a persuasive voice for liberals, managing to bring conservatives over to his side on issues ranging from the environment to national security. For example, in a case involving Chinese Uighurs detained at Guantanamo Bay, Cuba, Garland asked the Justice Department for the particulars of its evidence and then wrote an opinion for himself and two conservative judges that concluded that the Bush administration's claim that they were enemy combatants was utterly unsupported by the evidence.

Rick Hasen at ElectionLawBlog:I have suggested (in the last chapter of Plutocrats United) that one way to compromise on SCOTUS nominees is an 18 year term limit. Appointing someone who is 63 moves in that direction. It gives the President a win, but one which as a matter of probability and actuary tables won’t be on the Court as long. It is a way for Obama to say that he could have reached for greater power over SCOTUS, but compromised.

In short, Garland’s age, which may make some liberals oppose his nomination, may be precisely what is attractive to the President who actually wants to appoint someone to #SCOTUS, and not just put up the human pinata.

Future episodes

First of all... they'll be shorter and closer to "single topic" shows than this first episode monstrosity.

A deeper dive on Judge Garland's record.

Are the Republicans at all correct with their stance on nominations at this time in a presidency (hint: no).

How much is the Court really going to change going from Justice Scalia to a Justice Garland?

A look back on Justice Scalia's legacy.

Adam goes Rain Man on the Senate Rules.

In retrospect, did the Dems ever make a tactical error with past stances on nominations and the nuclear option?